Amicus Curiae Brief — United States v. Grubbs

5

No. 04-1414

In the

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

Vv.

JEFFREY GRUBBS,

Respondent.

On Writ of Certiorari

to the Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AND PROFESSOR GEORGE C. THOMAS III IN

SUPPORT OF RESPONDENT

JEFFREY L. FISHER DANIEL L. KAPLAN

Co-Chair, NACDL Counsel of Record

Amicus Committee JASON ROMERO

2600 Century Square OSBORN MALEDON P.A.

1501 Fourth Avenue 2929 N. Central Ave.

Seattle, WA 98101 Phoenix, AZ 85012-2794

(206) 628-7615 (602) 640-9000

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............000000000:. i

INTERESTS OF AMICI CURIAE ..........2.000000: 1

SUMMARY OF ARGUMENT ...........020000000 2

pS ee Se res Sener an ne 3

I. The Historical Background of the Fourth

Amendment as an Expression of Abhorrence of

Discretionary Searches ...........ccceeeee- 3

A. General Warrants and Writs of Assistance

REINS co spceccncucscenccocsuwss 3

B. The Colonial and Revolutionary American

Experience with General Warrants and

WED OS AOTINEED 2. nc ccsiccsvecenes 8

i, James Otis’ Argument in the 1761

Writ of Assistance Case (Paxton’s

SN i hdd bendee cen dneeuetes 11

2. Chief Justice Pratt’s Opinions in The

Ss cacndccacvehess 17

3. Efforts to Enforce the Townshend

Acts with Writs of Assistance .. 21

II. “Anticipatory” Warrants’ Essential Resemblance

to General Warrants and Writs of Assistance . 24

REE 6% Vucnwccedecteucscanssaunewnnes 28

TABLE OF AUTHORITIES

Page

Cases

State v. Nusbaum, 107 P.3d 768 (Wash. Ct. App. 2005) ..... 27

United States v. Hale, 784 F.2d 1465 (9th Cir. 1986) ......... 2

United States v. Rowland, 145 F.3d 1194 (10th Cir. 1998) .... 27

United States v. Weber, 923 F.2d 1338 (9th Cir. 1990) ......... 2

Vernonia School District v. Acton, 515 U.S. 646 (1995) ..... 4,9

Yee v. Escondido, 503 U.S. 519 (1991) .......... 2c eee eees 2

ions, Statut Rul

Cen CORR, BURGE BU cccccontnsnctcaqsencssenseptetnimnennniosunitnndinhconinin 25

Supreme Court Rules, Rule 14.1 ......::sssccsessessseeeesenseeeseeersesees 2

Supreme Court Rules, Rule 37.3 .......:..cscesssessecerseceeeeeesenennnenes 1

Supreme Court Rules, Rule 37.6 ........ssssssssecsereeeseesenseseneneees 1

iscell

Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs

of Assistance, 30 Suffolk U. L. Rev. 53, 67 (1996) ........cseseeeeees 12

Morgan Cloud, Searching Through History; Searching For History,

GB U. CAL. L, Raw. TFGF ODE ccecccsccvecsevesscccsessscccveessccsnsssossnee 4

4 Sir Edward Coke, The Institutes of the Laws of England (1642) 6

William J. Cuddihy, The Fourth Amendment: Origins and Original

Meaning (1990) (unpublished Ph.D. dissertation, Claremont

SIND cccacireescctansvereceniprecsosenemmaumsinsennmnsmnnigente passim

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98

EREDL, Be Baw. BEF (III OD acccrnsensersvonscevecesenrsenncancopene 12, 16, 20, 24

O.M. Dickerson, Writs of Assistance as a Cause of the Revolution,

in Richard B. Morris, ed., The Era of the American Revolution

(Columbia University Press 1939) .......s.ssscessessesseersneeneers 22, 23

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

Amendment to the United States Constitution (The Johns Hopkins

UII :Weiiciicininssbdastianaiivsstiiinnddcennsiniatiadinisdetibnasies 17-19, 21, 23

Tracy Maclin, The Complexity of the Fourth Amendment: A

Historical Review, 77 B.U. L. Rev. 925 (1997) .......seseeseeseeeeeeees 24

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

Than the Disease, 68 S. Cal. L. Rev. 1 (1994) .......cccsceseceeeeseeeeees 24

Norma Rotunno, Annotation, Validity of Anticipatory Search

Warrants—State Cases, 67 A.L.R.5th 361 (1993) .....csseececeseeeeees 26

2 L. Kinvin Wroth and Hiller B. Zobel, eds., Legal Papers of John

Adams (Harvard University Press 1965) ........::.:ssesssesseeees 11-13

iil

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS AND PROFESSOR GEORGE C.

THOMAS III IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE

The National Association of Criminal Defense

Lawyers (“NACDL”),a nonprofit corporation, is the only

national bar association working in the interest of public

and private criminal defense attorneys and their clients.

NACDL was founded in 1958 to ensure justice and due

process for persons accused of crimes, foster the integrity,

independence and expertise of the criminal defense

profession, and promote the proper and fair

administration of justice.’ NACDL has 10,000 members

nationwide-joined by 80 state and local affiliate

organizations with 28,000 members-including private

criminal defense lawyers, public defenders and law

professors committed to preserving fairness within

America’s criminal justice system. The American Bar

Association recognizes NACDL as an affiliate

organization and awards it full representation in its

House of Delegates. Professor Thomas is the Judge

Alexander P. Waugh, Sr. Distinguished Scholar at Rutgers

University School of Law. Professor Thomas has

published numerous books and articles dealing with

constitutional and criminal law and legal history. The

NACDL and Professor Thomas are concerned because the

issues presented in this case relate to a widely-used type

1. No counsel for any party has authored this brief in

whole or in part, and no person or entity, other than NACDL,

made any monetary contribution to its preparation or

submission. See Rule 37.6, Sup. Ct. Rules. Letters of consent

from the parties have been lodged with the Clerk of the Court.

Rule 37.3(a).

2

of search warrant, the constitutionality of which’ may be

properly assessed only pursuant to an adequate

examination of the historical background of the Fourth

Amendment.

SUMMARY OF ARGUMENT

The Anglo-American revulsion toward the sort of

broad governmental search-and-seizure authorizations

that were still commonplace in the first half of the

eighteenth century had many objects, and went through

many phases. English search-and-seizure practices in the

preceding centuries were commonly quite violent, and

were used as weapons for stifling dissent, forestalling

rebellion, and intimidating political opponents. But as

the Revolution neared in America, and the colonists

rapidly underwent a sea change in their attitude toward

broad general warrants and writs of assistance, one theme

became increasingly central: the conviction that non-

particularized search-and-seizure authorizations were

abhorrent because they conferred excessive discretion, and

2. The question of the constitutionality of “anticipatory”

search warrants is a “subsidiary” of, and is “fairly included”

within (Sup. Ct. R. 14.1(a)), the question presented in the Petition,

which asked whether the Fourth Amendment requires the

suppression of evidence when officers conduct a search under an

“anticipatory” warrant and certain conditions are present. See

Pet. at (I); see also Yee v. Escondido, 503 U.S. 519, 534 (1992) (“Once

a federal claim is properly presented, a party can make any

argument in support of that claim; parties are not limited to the

precise arguments they made below.”). It would have been futile

for Respondent to press this argument below, in light of Ninth

Circuit precedent. See United States v. Hale, 784 F.2d 1465, 1468-69

(9th Cir. 1986), abrogated on other grounds as noted in United States

v. Weber, 923 F.2d 1338, 1343 n.6 (9th Cir. 1990).

3

hence excessive power, on the government agents holding

them.

The “anticipatory” warrants that are the subject of

this case would have incurred the condemnation of the

generation of Americans who drafted, approved, and

ratified the Fourth Amendment, because these warrants

confer on government officials the power and discretion

to reach their own conclusion as to when the “triggering

events” giving rise to their search power have occurred.

Worse yet, in many cases-including this one-‘hese

warrants effectively go a step further, empowering

government agents to create the conditions that they may

then treat as giving them the power to search and seize.

In view of the sharp conflict between this form of warrant

and the original spirit and purpose of the Fourth

Amendment, the Court should hold that “anticipatory”

warrants are unconstitutional.

ARGUMENT

I.

The Historical Background of the Fourth Amendment

as an Expression of Abhorrence of Discretionary

Searches

A.

General Warrants and Writs of Assistance in England

The historical record supplies no shortage of

reasons for English and colonial American subjects to

oppose broad-based governmental search-and-seizure

authorizations. The preceding centuries had seen search-

and-seizure practices evolve from a relatively

uncontroversial set of methods for apprehending fleeing

4

felons and recovering contraband to an instrument of

political, religious, and class-oriented governmental

persecution.

In thirteenth century England, searches for fleeing

criminals were effected by the ancient practice of the “hue

and cry,” which provided that subjects who witnessed a

crime were to chase the perpetrator, blowing horns and

shouting for others to join them.’ Searches for, and

seizure of, fleeing felons were conducted by the public,

with minimal or no involvement of government officials,

and no authorization to break into private dwellings.*

Over the next two centuries, however, searches became

both more extensive, with pursuers increasingly being

permitted to enter private dwellings, and more a locus of

government authority, as legislation empowered

government officials to arrest persons suspected of past

crimes.’ By the fifteenth century, the Crown had begun

issuing general authorizations empowering royal agents

3. William J.Cuddihy, The Fourth Amendment: Origins and

Original Meaning 52 (1990) (unpublished Ph.D. dissertation,

Claremont Graduate School). Cuddihy’s dissertation, which we

rely on extensively as a compendium of primary materials and

a source of useful insights, was identified by Justice O’Connor as

“one of the most exhaustive analyses of the original meaning of

the Fourth Amendment ever undertaken.” Vernonia School

District v. Acton, 515 U.S. 646, 669 (1995) (O’Connor, J.,

dissenting). Professor Morgan Cloud described it as “a model of

the effort and objectivity that are hallmarks of legal history.”

Morgan Cloud, Searching Through History; Searching For History,

63 U. Chi. L. Rev. 1707, 1746 (1996).

4. Cuddihy, supra note 3, at 53-54.

5. Id. at 54-55.

5

to search for specified contraband or types of criminals.°

While the legal framework for aggressive house-to-house

searches had been articulated by the latter part of the

fifteenth century, however, in practice this power was not

widely exercised, and thus excited little opposition.’

Search-and-seizure practices underwent dramatic

changes in the Tudor and early Stuart eras (1485-1642).

Wide-ranging and highly-intrusive governmental

searches came to be used as tools for “cleans[ing] the

cities of vagabonds,”* regulating the entertainments and

dress of the working classes,’ and stifling political and

religious nonconformity."° The latter two purposes were

often overseen by two institutions that Revolutionary-era

Americans came to view as emblematic of tyrannical and

unjust government: the Privy Council and the Star

Chamber. Both of these entities made it their practice to

issue broad authorizations for aggressive search-and-

seizure campaigns directed at entire categories of

persons, places, or objects."’ And because these search-

and-seizure campaigns were used for their in terrorem

6. Id. at 56.

7. Id. at 75-76, 79.

8. Procl. no. 16, n. p., 23 Dec. 1487 (cited in 1 Tudor Royal

Proclamations, Paul L. Hughes and James F. Larkin eds., (1964-69)

17 (cited in Cuddihy, supra note 3, at 82)).

9. Cuddihy, supra note 3, at 84-85 (citing search

authorizations directed at the playing of dice, bowls, and tennis,

and the wearing of ostentatious headgear).

10. Id. at 115-99.

11. Id. at 115-16.

6

effect at least as much as for locating and seizing

criminals or contraband, they became increasingly

violent. Aggressive governmental house-to-house

searches thus became a reality with which English

subjects of all classes were intimately familiar, and

opposition to these practices began to mount.

One of the earliest and most influential critiques

came from Sir Edward Coke, who proclaimed in his 1642

treatise Institutes of the Laws of England that “ for justices of

peace to make warrants upon surmises, for breaking the

houses of any subjects to search for felons, or stoln [sic}

goods, is against Magna Carta.””* Royal search practices

were also attacked as unlawful and oppressive by

Parliament, which resented the Crown’s use of them as a

tool for subduing and intimidating its members.”

_ By 1700, English scholars had begun to articulate

a powerful critique of broad-based search authorizations,

focusing specifically on the issuance of general

warrants-~i.e., warrants that created broad authority to

search and did not specify particular places that could be

searched or things that could be seized. Nevertheless,

such general warrants continued to be the norm in

England, and continued to be used as tools of censorship

and political control.”

Meanwhile, in 1662, the institution of “writs of

assistance” was codified in English law, reinforcing yet

12. 4Sir Edward Coke, The Institutes of the Laws of England

176 (1642).

13. Cuddihy, supra note 3, at 242.

14. Id. at 292.

7

another legal basis for broad and indiscriminate

governmental search-and-seizure authority. Similar writs

had been in use for centuries, in the form of directions to

peace officers to assist individuals in recovering money or

property.” But the “Fraud Act” of 1662 regularized and

broadened the writ, authorizing the issuance of writs

empowering customs officials to “enter any house, shop,

cellar, warehouse, or room or other place” and if

necessary to “break open doors, chests, trunks and Ye

packages” to locate and seize uncustomed goods.”®

amended in 1701, the Act extended the duration of se

such writ to six months after the death of the monarch in

whose reign it was issued.” Technically, the customs

officer’s “writ of assistance” added little to the officer’s ex

oficio search authority."* In practice, however, the

issuance of the writ reinforced and clarified the officer’s

authority, making it difficult or impossible for the subject

of a search to claim in good faith that he had no

obligation to permit the officer to conduct a search.”

15. Id. at 299-300.

16. 13 and 14 Charles II, c. 11, sec. 5 (1662) (quoted in

Cuddihy, supra note 3, at 306).

17. 1 Anne, stat. 1, c. 8, sec. 5 (1701) (cited in Cuddihy,

supra note 3, at 306).

18. Cuddihy, supra note 3, at 650.

19. Thus, for example, Massachusetts Governor William

Shirley directed the customs service to obtain writs of assistance

from the colony’s highest court, the Superior Court of Judicature,

when the officers’ ex oficio searches were repeatedly met with

resistance and lawsuits. See 3 Thomas Hutchinson, The History of

Massachusetts 92 (1764-1828) (cited in Cuddihy, supra note 3, at

731).

8

B.

The Colonial and Revolutionary American Experience

with General Warrants and Writs of Assistance

Although America was destined to leap far ahead

of Britain in rejecting broad governmental search-and-

seizure authority, colonial Americans remained relatively

sanguine with respect to these practices until the 1760s.

Americans were familiar with the ancient principle that

“a man’s home was his castle,” and on occasion would

invoke it in support of the proposition that government

officials could not invade the privacy of their homes

under any circumstances.” But, notwithstanding their

awareness of British scholars’ attacks on the legality of

general warrants,” colonial Americans did not broadly

condemn them, and in fact treated them as the default

mechanism for authorizing searches.” Indeed, Americans

owned and used British legal treatises, which included

proposed forms of search warrants, virtually all of them

general in nature.

Notably, a form of general warrant known as a

“Dormant Warrant,” which resembled the present-day

“anticipatory” warrant insofar as it was issued in view of

possible future, rather than actual past, crimes, appeared

in a number of these treatises. Richard Kilburne’s Choice

Precedents Relating to the Office of a Justice of Peace included

a form of “Warrant Dormant” that authorized the holder

to search suspicious places as often as he wished for up to

20. See Cuddihy, supra note 3, at 363-69.

21. See id. at 370.

22. See id. at 376.

9

a year after an unsolved theft, in the anticipation that

further thefts might occur during that time.” Kilburne’s

treatise was on bookshelves from Francis Dana’s in

Massachusetts to William Byrd’s in Virginia.” Virtually

the same sort of warrant, designed to be issued in

anticipation of an outbreak of larcenies, appeared as a

“Lodging Warrant” in other contemporary legal manuals.

The “Lodging Warrant” authorized officials to “make

diligent search in the most suspicious Places. . . for goods

stoln [sic]” whenever and as frequently as the officer saw

fit.° These “Dormant” and “Lodging” warrants were

among the forms of general warrant familiar to Colonial

Americans, and, by the same token, were among the

forms of warrant that Americans later resolved to banish

forever from the American legal landscape. See Atwater

v. City of Lago Vista, 532 U.S. 318, 339-40 (2001) (citing

United States v. Watson, 423 US. 411, 429 (1976) (Powell,

J., concurring)); Vernonia School District v. Acton, 515 US.

646, 669 (1995) (O'Connor, J., dissenting).

Notwithstanding the colonial governments’

23. Richard Kilburne, Choice Precedents Pelating to the

Office of a Justice of Peace 406-07 (6th ed. 1700) (cited in Cuddihy,

supra note 3, at 288-89). Similar “dormant” form warrants

appeared in at least two other contemporary treatises. See John

Bond, Collection of Precedents 507 (2d ed. 1696); Henry Care and

William Nelson, English Liberties 177-78 (1700) (cited in Cuddihy,

supra note 3, at 289 n.11).

24. See Herbert Johnson, comp., Imported Eighteenth

Century Law Treatises in American Libraries 35 (Knoxville 1978)

(cited in Cuddihy, supra note 3, at 466-67 n.15).

25. Giles Jacob, Lex Mercatoria 169 (3d ed. 1720); see also

Joseph Higgs, A Guide to Justices 101-02 (3d ed. 1750) (cited in

Cuddihy, supra note 3, at 625-26 & n.79).

10

practice of issuing general warrants, these warrants had

not sparked widespread condemnation in America prior

to 1760. The reason is simple: Although colonial

governments turned to general warrants fairly routinely,

they did not do so very frequently.” Nor did colonial

governments have the means to effectuate broad and

oppressive searches. Even major cities such as Boston

and New York had at most a handful of constables, and

those they had were unpaid members of the community

who served for only a year before the job rotated to

another, all the while keeping their regular jobs.” In

contrast to the violent searches by professional proto-

armies that had characterized Tudor and early Stuart

England, the colonial American experience of general

searches had been more akin to “letting one’s brother-in-

law and the merchant next door look under the kitchen

table for Farmer Brown’s stolen pewterware.””

A few factors led to the rapid turnabout in

American attitudes after 1760. For one thing, the British

government's practices with respect to customs searches

stood in stark contrast to the general law-enforcement

searches carried out by local constables. Perhaps because

of the generally non-violent, surreptitious, and ostensibly

victimless nature of smuggling, customs laws had always

been accompanied by general search-and-seizure

authority.” Moreover, enforcement of these laws was

overseen, not by colonial governments and unpaid part-

26. See Cuddihy, supra note 3, at 375.

27. See id. at 497-503.

28. Id. at 504.

29. See id. at 58.

11

time constables, but by the British government and its

professional agents. English customs officers

aggressively exercised their general search powers in the

colonies, and by 1760 Americans’ resentment of these

harsh practices had become pronounced.”

Still more crucial to the sea change in Americans’

opinions, however, was a trilogy of celebrated legal

standoffs over search-and-seizure authority that occurred

on both sides of the Atlantic between 1761 and 1776.

1.

James Otis’ Argument in the 1761 Writ of Assistance

Case (Paxton’s Case)

The first occurred in Massachusetts in 1761, after

the death of George I] in October of 1760 caused the writs

of assistance issued during his reign to expire

automatically, pursuant to the Fraud Act of 1662." After

customs official Charles Paxton applied to the Superior

Court for the issuance of new writs, a group of Boston

merchants petitioned the Superior Court to hear

argument against the issuance of the writs. Surveyor

General of the Customs Thomas Lechmere petitioned to

be heard in support of the writs. The court agreed to hear

arguments, and the merchants retained James Otis, Jr., the

Crown’s chief attorney in Massachusetts and son of one

of the colony’s most powerful politicians, to help argue

30. See id. at 518.

31. See supra at 7 & n.16; 2 L. Kinvin Wroth and Hiller B.

Zobel, eds., Legal Papers of John Adams 112 (Harvard University

Press 1965) (“Adams Legal Papers”).

12

their side of the case.*

As the two sides squared off in the Council

Chamber of what is now the Old State House in Boston,

a young Boston lawyer and patriot, and future author of

the State search-and-seizure provision generally viewed

as the Fourth Amendment's nearest ancestor,” sat “lost in

Admiration.”“* John Adams, then 25 years old, would

later proclaim Otis’ argument against the Writs of

Assistance “the first scene of the first Act of Opposition to

32. See Cuddihy, supra note 3, at 763-65.

33. John Adams authored the 1780 Massachusetts

Constitution and Declaration of Rights, which included the

following provision:

Art. XIV. Every subject has a right to be secure from all

unreasonable searches and seizures of his person, his house,

his papers, and all his possessions. All warrants, therefore,

are contrary to this right, if the cause or foundation of them

be not previously supported by oath or affirmation; and if

the order in the warrant to a civil officer, to make search in

suspected places, or to arrest one or more suspected

persons, or to seize their property, be not accompanied

witha special designation of the person or objects of search,

arrest, or seizure: And no warrant ought to be issued, but

in cases, and with the formalities, prescribed by the laws.

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98

Mich. L. Rev. 547, 684-85 (1999). Professor Amar has noted that

“[t]he language, logic and structure of the Massachusetts

Constitution’s Article XIV rather clearly foreshadow the federal

Fourth Amendment.” Akhil Reed Amar, The Fourth Amendment,

Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53, 67

(1996).

34. Adams Legal Papers, supra note 31, at 106.

13

the arbitrary Claims of Great Britain,” adding: “[t]hen

and there the child Independence was born.”

Adams’ “Abstract” of Otis’ argument, a version of

which was published in the Massachusetts Spy in 1773,

indicates that among Otis’ indictments of the writ was the

fact that it empowered those holding it to search

Americans’ homes at their individual-and likely arbitrary

and malicious~discretion. Otis complained that “every

one with this writ may be a tyrant,” and that “Custom

house officers may enter our houses when they please . .

. their menial servants may enter . . . and whether they

break through malice or revenge, no man, no court can

inquire.”” :

But Otis went beyond merely indicting general

warrants and writs of assistance, adding that there was

one form of search authorization that “may be legal”:

special writs, directed to special officers, and to search

certain houses, &c. especially set forth in the writ,

may be granted by the Court of Exchequer, at home,

upon oath made before the Lord Treasurer by the

person, who asks, that he suspects such goods to be

concealed in THOSE VERY PLACES HE DESIRES TO

SEARCH.”

35. March 29, 1817 Letter from John Adams to William

Tudor (quoted in Adams Legal Papers, supra note 31, at 107).

36. See id. at 134-35 n.103.

37. Id. at 142.

38. Id. at 141. -

14

Although Otis’ broader theme, that the British

Government's arbitrary claims could be declared contrary

to fundamental legal principles, was more the focus of

Adams’ loftiest encomiums, the latter assertion-that

specific warrants could be an acceptable substitute for

general warrants and writs—was more essential to the

development of the principles that would later be

enshrined in the Fourth Amendment. Otis here picked

up on a discussion that had originated a few decades

earlier among British critics of the general warrant.”

In the preceding decades, many of the general

warrant’s British opponents had gone beyond simply

attacking the warrant, and had begun grappling with the

question of what might serve as a suitable replacement.

What sort of replacement could be considered suitable, of

course, turned on what aspect of the institution of the

general warrant was seen as most abhorrent. If the chief

objection was that the searches conducted pursuant to the

warrants were too intrusive, it might be declared that the

degree of penetration involved in searches must be

constrained across-the-board. If it were that the searches

were too violent, the proper remedy might be measures

regulating the methods that the searchers could employ.

If it were that the searches tended to be used as

instruments of oppression against nonconformists and

political opponents, a measure such as approval of the

warrant by a diverse panel of reviewers might be

suggested.

For these critics, however, the chief evil of the

general warrant was none of these things, but rather their

vesting of discretion in the searching official. Thus, one of

39. See Cuddihy, supra note 3, at 535-60.

15

these scholars declared it “extremely hard to leave it to

the discretion of a Common officer to arrest what

Persons, and search what Houses he thinks fit.”

Another asserted that allowing gamekeepers “to search

what places they shall think proper” for poached animals

would constitute an excessive grant of power.” As the

House of Commons considered a general Navy

impressment warrant, Sir John Barnard warned that such

warrants placed an “unlimited power” in the hands of

petty officers to “insist upon searching the house of any

gentleman or any nobleman of the neighborhood.”” In

the upper house, Lord Gage similarly warned that the bill

would subject every Englishman's home to forcible entry

and search at “the caprice and insolence of every dirty

little officer.””

These English critics recommended that the

problem of excessive search-and-seizure discretion be

solved by favoring the use of specific warrants, which

narrowly cabin the officer’s power to search for

particularly-identified things in particularly-identified

places, rather than authorizing them to break open and

40. 2’ Villiam Hawkins, Treatise of the Pleas of the Crown 82

(1721) (quoved in Cuddihy, supra note 3, at 539).

41. 1 Richard Burn, The Justice of Peace 439 (1755) (quoted

in Cuddihy, supra note 3, at 547).

42. March 6, 1740 Comments of Sir John Barnard, 20 A

Collection of the Parliamentary Debates in England from the year M,

DC, LXVIII 258-59 (1741) (quoted in Cuddihy, supra note 3, at

551-52).

43. March 6, 1740 Comments of Lord Gage, 3 The Scots

Magazine 324 (quoted in Cuddihy, supra note 3, at 552).

16

search dwellings essentially at their whim. Recognizing

that open-ended grants of search-and-seizure authority

amounted to invitations to arbitrary, harassing, and

malicious behavior, likely driven by class resentment,

avarice, malice, or some combination of these

motivations, these critics settled on an approach to grants

of search-and-seizure authority that would cabin that

power as narrowly as possible, while still allowing the

officers to perform their proper functions.“

Despite his eloquence in advocating for the specific

warrant, Otis lost Paxton’s Case. The court suspended the

proceedings in order to inquire into English policy on the

writ question, and, after receiving assurances that the

English Court of Exchequer granted the writs as a matter

of course, rejected the merchants’ challenge.” But Otis’

widely-publicized arguments against the general warrant

and in favor of the specific form gained tremendous

currency among colonial Americans.“ Commentators

castigated the customs officials, and enthusiastically

echoed Otis’ condemnations of the writs’ discretionary

nature, decrying the issuance of writs that allowed a

customs official to “ENTER FORCEABLY into a

DWELLING HOUSE, and rifle every part of it, where he

shall PLEASE to suspect uncustom’d goods are lodg’d.””

Soon after, Otis won a seat in the Massachusetts House of

44. Cuddihy, supra note 3, at 553-58.

45. Id. at 796-98.

46. See Davies, supra note 33, at 561 n.20.

47. Boston Gazette and Country Journal, Nov. 23, 1761 at

3 (quoted in Cuddihy, supra note 3, ai 801).

17

Representatives by a nearly unanimous vote,“ while in

the 1765 Stamp Act Riot, Chief Justice Thomas

Hutchinson, who had ruled against Otis and in favor of

the writs, saw his house destroyed by rioters “with a

savageness unknown in a civilized country.””

Massachusetts Governor Sir Francis Bernard ascribed the

violence to the rioters’ memory of Hutchinson’s role in

Paxton’s Case, informing the Lords of Trade that “[t]he

Chief Justice took the lead in the Judgment for granting

Writs, and now he has paid for it.”” By giving forceful

voice to colonial Americans’ fierce resentment of

discretionary searches, Otis had hammered the first nail

in the coffin of the general warrant in America.

2.

Chief Justice Pratt's Opinions in The Wilkesite Cases

The controversy over Paxton’s Case had barely

subsided when a new high-profile conflict over search-

and-seizure authority arose, this time in England. In

1762, Member of Parliament John Wilkes began

anonymously publishing a series of pamphlets entitled

the North Briton, which derided and criticized the

governing party.” When Issue 45, with its especially

harsh attack upon a speech given by the King, appeared,

48. Cuddihy, supra note 3, at 817.

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

Fourth Amendment to the United States Constitution 68 (The Johns

Hopkins Press 1937).

50. Letter from Sir Francis Bernard to the Lords of Trade

(quoted in Lasson, supra note 49, at 68).

51. Lasson, supra note 49, at 43.

18

the Secretary of State issued a warrant directing several

messengers “to make strict and diligent search for the

authors, printers, and publishers” of the pamphlet, and

“to apprehend and seize [them], together with their

papers.

Having thus been granted an open-ended power

to arrest, search and seize at their discretion, the

messengers proceeded to arrest forty-nine people in three

days.” Eventually they learned from one of them that

Wilkes was the author of Issue 45, and confronted him at

his home. Wilkes pronounced the messengers’ warrant

invalid and refused to submit to an arrest or search,

whereupon the messengers carried him in a chair to the

of State’s office. They then returned to ransack

Wilkes’ house and seize all of his papers and effects.™

Eager to turn the arrest and search into yet another

embarrassment for the government, Wilkes filed a dozen

separate trespass suits within a month, and many of his

cohorts followed suit.* These suits culminated in a

number of widely-noted decisions, among them Chief

Justice Pratt’s eloquent condemnation of general warrants

in Wilkes v. Wood. The Chief Justice declared:

The defendants claimed a right under precedents to

force persons’ houses, break open escritoires, seize

their papers, upon a general warrant, where no

52. Id.

53. Id. at 43-44.

54. Id. at 44.

55. Cuddihy, supra note 3, at 894.

19

inventory is made of the things taken away, and

where no offenders’ names are specified in the

warrant, and therefore a discretionary power given

to messengers to search wherever their suspicions

may chance to fall. If such a power is truly invested

in a secretary of state, and he can delegate this

power, it certainly may affect the person and

property of every man in this kingdom, and is

totally subversive of the liberty of the subject.”

Further critiques of arrests and seizures pursuant

to open-ended warrants were issued by Chief Justice Pratt

and his colleagues in companion cases relating to Issue 45

of the North Briton.” On appeal of the decision in Leach v.

Money to the King’s Bench, Chief Justice Pratt’s views

were seconded by Chief Justice Mansfield, who opined:

“It is not fit that the judging of the information should be

left to the officer. The magistrate should judge, and give

certain directions to the officer.””

The Wilkesite decisions attracted wide attention,

and British papers printed enthusiastic affirmations of

Wilkes v. Wood’s condemnation of discretionary

searches.” The cases also received “[mJassive coverage”

56. Wilkes v. Wood, Lofft 1; 98 Eng. Rep. 489 (quoted in

Lasson, supra note 49 at 45).

57. See Cuddihy, supra note 3, at 896-907.

58. Money v. Leach, 3 Burr. 1692, 1742, 97 Eng. Rep. 1050,

1075 (quoted in Lasson, supra note 49, at 47).

59. The Monitor described the secretarial warrant as a

device employed “to empower mean, Low-lif’d ignorant men to

enter, and to act at discretion, and to overhaul things of the

20

in the American colonial press, which was

“overwhelmingly sympathetic to Wilkes.”“® Moreover,

people on both sides of the Atlantic were aware of Sir

William Blackstone’s condemnation of general

warrants—which was based on the Court of King’s Bench

proceedings in Leach-in his 1769 Commentaries on the Laws

of England.” Blackstone declared that “[a] general

warrant to apprehend all persons suspected, without

naming or particularly describing any person in special,

is illegal and void for its uncertainty; for it is the duty of

the magistrate, and ought not to be left to the officer, to

judge of the grounds of suspicion.”

The aggregate effect of these events on the minds

of colonial Americans was dramatic. Hostility to general

search-and-seizure authorizations “came not only from

colonial judges but from town meetings, the Continental

Congress, quasi-governmental agencies, pamphleteers,

essayists, and the man-on-the-street.”” A 1772 Boston

town meeting resolved that customs officers’ general

m{o]st private nature ....” Monitor, or British Freeholder, Feb. 11,

1764, at 2595 (quoted in Cuddihy, supra note 3, at 934). The

London Magazine declared that giving customs officers “a

discretionary power to search for and seize whatsoever they

should please to suspect” contravened England’s laws and

constitution. 34 London Magazine 283 (1765) (quoted in Cuddihy,

supra note 3, at 935).

60. Cuddihy, supra note 3, at 1105.

61. See Davies, supra note 33, at 566 n.27.

62. 4 William Blackstone, Commentaries on the Laws of

England 288 (1769) (quoted in Davies, supra note 33, at 580 n.78).

63. Cuddihy, supra note 3, at 1110.

21

search authority furnished every petty officer “with

power more absolute and arbitrary than ought to be

lodged in the hands of any man or body whatsoever.”

; 3.

Efforts to Enforce The Townshend Acts with Writs of

Assistance

Meanwhile, notwithstanding their victory in

Paxton's Case, English customs officials continued to face

obstacles in employing writs of assistance to search for

and seize uncustomed goods in America. When customs

officials attempted to search the cabinets of merchant

Daniel Malcolm’s house, he threatened to kill them if they

broke the lock on a particular cabinet. After the officials

had reported the incident to English officials, the English

Attorney General and Solicitor General recommended

that no prosecution be instituted, on the ground that the

officials’ writ was invalid.® One result was the enactment

of writ-related provisions of a series of laws that came to

be known as the Townshend Acts, after Chancellor of the

Exchequer Charles Townshend, who oversaw their

drafting and implementation.” By closing loopholes and

clarifying matters that had been left to interpretation,

such as which colonial courts were authorized to grant

the writs, these provisions of the Townshend Acts were

intended to remove all doubts regarding the writs’

legality.

64. “A List of Infringements and Violations of Rights,”

November 20, 1774, Votes and Proceedings of the Freeholders of

Boston 16-17 (quoted in Cuddihy, supra note 3, at 1112).

65. Lasson, supra note 49, at 68-69.

66. Id. at 70.

22

But the Act could not purport to eliminate the

higher-level critique of the writs that James Otis had

pronounced in Paxton’s Case, or that Chief Justices Pratt

and Mansfield had articulated in the Wilkesite Cases. As

customs officials, armed with the Townshend Acts,

sought the colonial courts’ cooperation in procuring writs

of assistance in the latter 1760s, they soon discovered that

these views had become firmly entrenched in America.

Although a few colonial courts obliged, several not only

refused, but in doing so cited rationales that closely

tracked Otis’ attack from the beginning of the decade.

The judges in Pennsylvania, for example, opined that

“arming officers of the Customs with so extensive a

power, to be exercised totally at their own discretion

would be of dangerous consequences and was not

warranted by Law.”” Chief Justice William Drayton, of

the Florida provinces, explained that he “d[id] not think

[him]self justified by Law to issue general writs for that

purpose to be lodged in the hands and to be used

discretionally (perhaps without proper foundation) at the

will of subordinate officers.”

The Virginia courts agreed to grant writs, but

insisted on drafting suitable versions, rather than

following the forms provided by the customs officials.

This course was sufficiently troubling to the English

authorities to generate an indignant letter from the

67. July 3, 1773 Letter of the Customs Officers at

Philadelphia to the Customs Commissioners (quoted in O.M.

Dickerson, Writs of Assistance as a Cause of the Revolution, in

Richard B. Morris, ed., The Era of the American Revolution 60-61

(Columbia University Press 1939)).

68. November 17, 1772 Letter from William Drayton to

William Cummings (quoted in Dickerson, supra note 67, at 64).

23

|

Treasury Board to the Attorney General lamenting:

most of the [American] judges refused to grant [the]

writs alledging [sic] that no information had been

made to them of any special occasion for such writ,

and unless such Information was made to them on

oath they could not legally grant them, it being

unconstitutional to lodge such a Writ in the hands of

the officer which gave him unlimited power to act

under it according to his own arbitrary Discretion.”

From the Virginia confrontation over the writs, a

direct line of succession may be traced through the

various State declarations of rights to the federal Bill of

Rights’ Fourth Amendment. Virginia in 1776 became the

first State to formally condemn general warrants in such

a declaration of rights,” and the six additional States that

enacted declarations or bills of rights between 1776 and

1784 all included such a provision.” As noted above,

John Adams, who had looked on with reverence nineteen

years earlier as James Otis eloquently proclaimed

discretionary search-and-seizure authority intolerable,

authored Massachusetts’ 1780 version, which came very

near to the Fourth Amendment in its structure and

69. August 31, 1772 Correspondence with Attorney

General Edward Thurston (quoted in Dickerson, supra note 67, at

69). Thurston in response declared it “strange indeed, that any

judge in the colonies should think the laws of the mother too

harsh for the temper of American Liberty.” Id. at 71.

70. See Lasson, supra note 49, at 79 & n.3.

71. See id. at 80-82 & nn.9-17.

24

wording.”

IL

“Anticipatory” Warrants’ Essential Resemblance to

General Warrants and Writs of Assistance

The moral of this history is plain: The spirit

animating the Fourch Amendment is an abhorrence for

governmental search-and-seizure authorizations that

place excessive discretion, and thus excessive power, in the

hands of government agents.” Warrants that fail to

particularize in all possible respects the outer boundaries

of the search-and-seizure power that they create therefore

fly directly in the face of the core principle of the Fourth

Amendment.

Equally importantly, it has never been sufficient

for this cabining of the official’s discretion to be effected

in terms that leave room for interpretation on the part of

72. See supra note 33.

73. See Davies, supra note 33, at 580-82 (noting the

Revolutionary generation’s “deep-rooted distrust and even

disdain for the judgment of ordinary officers”); Tracy Maclin, The

Complexity of the Fourth Amendment: A Historical Review, 77 B.U. L.

Rev. 925, 970-71 (1997) (moting that the purpose of the

Massachusetts Declaration of Rights’ search-and-seizure

provision was “to restrain the discretion of officers and executive

officials”); Tracy Maclin, When the Cure for the Fourth Amendment

is Worse Than the Disease, 68 S. Cal. L. Rev. 1, 19-20 (1994) (“the

search and seizure practices of the British authorities were

opposed because of the arbitra’ power exercised by customs

officers and Crown officials. The Fourth Amendment was

adopted to deter federal officials from exercising similar

unrestrained power.”).

25

the official-a flaw that inevitably allows the low-level

official discretion reviled by the Framing generation to

seep back in. Indeed, if this piece of the puzzle is

overlooked, even the hated genera’ warrants of the 1760s

would have to be considered acceptable, because even

they on their face normally delimited the permissible

Objects of the search and seizure-for example, by

specifying that the officer must be seeking evidence of a

particular crime, or particular contraband. In most cases,

their flaw was not that they failed to particularize at all,

but that they particularized in a maruex that left room for

the officer to make on-the-scene judgments as to whether

particular searches and seizures were appropriate.

It is therefore unsurprising that the Fourth

Amendment's particularity requirement reflects a

remarkably emphatic effort to delineate boundaries to the

officer’s search-and-seizure authority that leave no room

for on-the-scene judgment calls: The warrant must

“particularly describ[e] the place to be searched, and the

persons or things to be seized.””* Officers not only are not

trusted to decide for themselves whether a person or

home is “suspicious,” likely to be involved in a particular

crime, or the object of a reliable tip-they are literally

trusted to decide nothing beyond whether the “person”

“place” or “thing” before them is the same as specified in

the warrant. It is only a little exaggeration to suggest that

if the Framers could have required that searches and

seizures be conducted by programmable automatons,

they would have done so.

74. US. Const. amend. IV (emphases added).

26

The recent” innovation of allowing searches and

seizures pursuant to “anticipatory” warrants is

profoundly contrary to this core anti-discretion principle

of the Fourth Amendment. Pursuant to these forms of

warrant, low-level law enforcement officials are handed

a partially-blank check, authorized to decide on their own

whether the “triggering event” specified in the warrant

really has occurred. Indeed, it is self-evident that the

“anticipatory” warrant undermines the Fourth

Amendment’s oath requirement: The required oath is

meant to compel the officer to swear to the existence of

facts that establish probable cause—but since an officer

executing an “anticipatory” warrant does not swear an

oath that the “triggering event” actually has occurred

before conducting the search, any oath provided with

respect to such a warrant is necessarily incomplete.

It gets worse: In many cases, including this one,

“anticipatory” warrants not only vest low-level officers

with the power to determine whether a “triggering”

event has occurred, but also empower them to bring about

the very conditions that they may then treat as having

“triggered” their authority. The search at issue here

illustrates the point. At 7:19 a.m. on April 19, 2002, as

Jeffrey Grubbs and his wife prepared their children for

school, the postal inspectors huddled outside of his home

had a piece of paper that accorded them no power to

enter or search his home. At 7:20, however, one of them

went to Grubbs’ door and handed his wife a package. A

few minutes later - with no new intervention by any

75. See Norma Rotunno, Annotation, Validity of

Anticipatory Search Warrants—State Cases, 67 A.L.R.5th 361, 361

(1993) (noting that “anticipatory” search warrants are a

“relatively recent law enforcement tool”).

27

magistrate and no new binding oath by any officer-the

inspectors determined that their actions had activated the

latent power of their “anticipatory” warrant. They

immediately descended on Grubbs’ home, compelled his

wife to let them enter, and searched the entire house as

well as his children’s backpacks. Pet. App. at 4a-6a.

Armed with their “anticipatory” warrant, these low-level

officials literally created, and then ratified, their own

power to search Grubbs’ home and seize his property.”

This description of the facts of this case is sufficient

in itself to establish that, in light of its profoundly

discretionary character, the “anticipatory” warrant would

have inspired the same revulsion on the part of the

Framing generation that greeted such instruments of

discretionary search authority as the general warrant and

the writ of assistance. In order to be faithful to the

essential purpose and design of the Fourth Amendment,

the Court should hold that the “anticipatory” warrant is

unconstitutional.

76. Caselaw provides still more dramatic examples of

officers’ on-the-scene exercises of discretion pursuant to

“anticipatory” warrants. See, e.g., United States v. Rowland, 145

F.3d 1194 (10th Cir. 1998) (warrant was to be served when

package was brought into target’s residence; after electronic

beeper in package stopped functioning while package was at

target's office, officers surmised that target took the package from

his office into his home, served the warrant, and searched his

home); State v. Nusbaum, 107 P.3d 768 (Wash. Ct. App. 2005)

(warrant was to be served when delivery of package was

accepted by person at target’s residence; after target’s fingers

touched the package and delivery person yanked it back, agents

arrested target in his front yard, served the warrant, and

searched his home).

CONCLUSION

For the foregoing reasons, amici urge the Court to

affirm the judgment below.

Respectfully submitted,

JEFFREY L. FISHER DANIEL L. KAPLAN

Co-Chair, NACDL Counsel of Record

Amicus Committee == JASON ROMERO

2600 Century Square OSBORN MALEDON P.A.

1501 Fourth Avenue 2929 N. Central Ave.

Seattle, WA 98101 Phoenix, AZ 85012-2794

(206) 628-7615 (602) 640-9000

December 19, 2005