The Obsolescence of the Common Law and the Rise of the Exclusionary Rule in Light of Supreme Court Originalism: A Glimpse at the Evolution of the Fourth Amendment
By: John J. Gamble
“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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fourth Amendment interpretation has long been complicated by its relative vagueness and the unique structure of its two clauses, the second of which textually seems to only concern the issuance of proper warrants. In the context of searches, the Court has long conflated the two clauses such that “reasonableness” governs the entirety of the Amendment’s text. The mixing of the two clauses beneath the reasonableness standard has facilitated the Court’s modern jurisprudence by allowing for the creation of the Amendment’s most salient feature, the Exclusionary Rule. This article intends to briefly address the historical validity of the Rule, and alternatives to it, particularly in light of recent Court precedent utilizing what is a seemingly historical analysis of the roots of the Fourth Amendment.
The general account of the Amendment’s origins begins with colonial anger over the use of general warrants by Imperial customs officials in years before the War for Independence. Later, once the federal constitution was promulgated, antifederalists feared that the distant central government proposed by the Constitution would emulate the British Crown and invade the homes of its citizens without a care for their sacrosanct property. Because of this fear the Fourth Amendment was placed in the Bill of Rights to ensure ratification. Because of the Amendment’s aforementioned vagueness, even when compared to other constitutional guaranties, some scholars have charged that the Amendment is incompetently drafted. Others have suggested that in reality the Amendment was meant only to require that warrants be drafted with exacting particularity to avoid the abuses that had occurred before the war. If this latter assertion is correct then the framers must not have been concerned with warrantless searches at all. This lack of concern for warrantless searches may derive from the form law enforcement took in the Eighteenth Century. Early America was largely rural, and there were no modern police bureaucracies; the common law treated low ranking judicial officers with disdain.
Regardless, it does seem clear that the framers were not interested in the ordinary criminal searches and seizures that fill “thousands of pages of our law reports today.” First, the text of the Constitution itself and the ratification debates tell us that a great deal of concern centered on the new government abusing its taxing power. Second, prior to the Fourteenth Amendment and the Doctrine of Incorporation, the Fourth Amendment applied only to the actions of the Federal Government, which in the Early Republic was quite a small operation. The size of the new federal government meant that very few crimes that we associate with the Fourth Amendment today were even illegal under federal law. Obviously narcotic crimes did not exists at all, but even larceny, robbery and murder were almost completely in the sole province of the states, and thus there would have been no need to limit the power of federal officers in regards to those crimes. Third, given the previous two reasons it is also plausible that the framers would not have generally been concerned in protecting petty criminals from what the modern Court would consider an unlawful search. Their chief goal was simply the restraint of federal power.
Now the reader might wonder what happened in the Early Republic or in England if a peace officer conducted a warrantless search that turned up nothing. While there is some scholarly disagreement, it seems likely that the framers meant to leave the difficulty of unreasonable searches in seizure to be solved by the ancient law of trespass. This is where we come to the Court’s role in search and seizure doctrine. In the early Nineteenth Century, trespass actions for unlawful seizures continued to be common. In fact, in this country’s early years the Court ruthlessly allowed federal officers to be forced to pay tort damages for illegal seizures even when following orders from the President. Thus, qualified immunity as we know it today would have been unacceptable to the early Court because the Court felt the “enumeration principle prevents an unconstitutional act from being ‘legalized.’” Unsurprisingly, the tort system of remedies declined in its usefulness as American society grew increasingly urbanized and interconnected. The need for investigative police work, the increase in unsympathetic plaintiffs pursuing common law remedies, the rise of police use of surveillance technology that had no common law remedy, and the dwindling of state political supremacy following the Civil War, all served to render the old common law trespass remedy outdated. The Court, through some creative reimagining of the interplay between evidence rules and property law, evolved the Exclusionary Rule as a new search and seizure remedy, though, the Court did not entirely abandon a property based mode of analysis for restrictions on searches and seizures until 1967 in Warden v. Hayden.
Today, the Court has created the Exclusionary Rule to fill the shoes of the old common law remedies. This has baffled some scholars who noted that the Rule led to an “explosion of rights” that never previously existed, as the Exclusionary Rule may allow guilty criminals to have evidence suppressed based on “unconstitutional” conduct on the part of the seizing officers. Though the Court originally treated the Exclusionary Rule as an outcome mandated by the Constitution itself, this assertion has been undermined by recent case law, creating several exceptions to the rule. Interestingly, however, though the Court has made no clear move to abandon the Exclusionary Rule in favor of a return to the common law remedies, several pluralities of recent Fourth Amendment decisions seem once again interested in the origins of the Fourth Amendment, particularly in a property based analysis of the scope of rights protected by the Amendment.
Other alternatives exist that could either run alongside the Exclusionary Rule, reduce its importance, or entirely replace it. For instance, the Court could announce that a common law remedy like trespass or replevin is constitutionally required for a search and seizure violation. Of course, such a remedy might prove problematic for administrative reasons. For instance, could the states cap the damages for these constitutional violations or have differing immunity doctrines for their officers? The Court could simply require that the states have some sort of basic remedy that the Court will presume acceptable absent serious evidence to the contrary. Another option would be to limit the scope of unreasonable searches by using common law era property concepts, as Justice Scalia has attempted, though in some circumstances it is not clear that this would deliver a substantially different result from the “reasonable expectation” of privacy standard developed in Katz v. United States.
Regardless of the path the Court might choose, this article is meant only to briefly illuminate the founder’s world of searches and seizures in an attempt to suggest that, while perhaps, the Exclusionary Rule is a useful Fourth Amendment remedy, it is by no means required by the text or demanded by history. Constitutional purists want the Rule axed as an extra-judicial remedy because, as previously noted, the Fourth Amendment was rooted in the property concerns of the founding generation; the Amendment only incidentally protected privacy. Pragmatists may be interested in other modes of fulfilling the Fourth Amendment’s protections because they see the Exclusionary Rule as excessively shielding the guilty. If members of the Court are interested in Fourth Amendment originalism then inquiries should be further made into the historical overlap between the common law and what the Fourth Amendment was meant to protect. A deeper examination suggests that though society has changed considerably since 1791, forays into the searches and seizures of Fourth Amendment past may provide seemingly new ways to tackle an age-old problem.
 U.S. Const. amend. IV.
 George C. Thomas III, Stumbling Towards History: The Framer’s Search and Seizure World, 43 Tex. Tech L. Rev. 199, 203
 See, e.g., United States v. Jones, 132 S.Ct. 945 (2012); Florida v. Jardines, 133 S.Ct. 1409 (2013).
 See Thomas Y. Davies, Can You Handle the Truth? . . ., 43 Tex. Tech L. Rev 51, 59 (2010) (noting also that the Founders were enamored with Lord Camden’s words condemning the use of general warrants in England during King George’s attempted suppression of political opponents).
 Thomas, supra note 2, at 207-208 (recounting Patrick Henry’s fear of a multitude of excisemen descending upon the citizenry). Modern Americans would likely be surprised how much the protection of property rights factored into early Anglo-American political theory. See id. at 221.
 Thomas, supra note 2, at 205.
 Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 577-578 (1999) (“[the framers] were unconcerned with warrantless intrusions because they did not perceive ordinary officers as possessing any significant discretionary authority at common law to initiate arrests or searches”); see also Thomas, supra note 2, at 200-201 (noting the differences between the modern “paramilitary investigative operation” and the Eighteenth Century constable who could generally only arrests persons for disturbing the peace in their presence or for felonies committed in fact, and constables practically never investigated crime).
 Thomas, supra note 2, at 206.
 U.S. Const. art. 1. (granting Congress the power to create excise taxes, and also requiring their uniformity throughout the country).
 Thomas, supra note 2, at 207-208.
 Id; See also Sina Kian, The Path of the Constitution: The Original System of Remedies, 87 N.Y.U. L. Rev. 132, 145 (2012) (noting the importance in early American jurisprudence of Entick v. Carrington, an English case in which Crown officers were required to pay exorbitant sums in damages for seizing the “sedition papers” of English radical John Wilkes).
 See Little v. Barreme, 2 Cranch 170, 178-179 (1804) (Marshall, J.) (holding officer liable for damages when unconstitutionally intercepting a warship though he had orders from the President to that effect.) Unfortunately for the officer the President had misconstrued the statute. See id.
 See generally Pearson v. Callahan, 555 U.S. 223 (2009) (discussing modern application of qualified immunity).
 Kian, supra note 15, at 147.
 Id. at 170-171 (arguing that Weeks v. United States, though often thought of as heralding in the new era of the Exclusionary Rule, was actually a product of the idea that a rule of evidence could not confer a property right); see also Weeks, 232 U.S. 383, 393-396 (1914) (holding that improperly seized evidence is due to be returned to the defendant upon his application for return in “due season.”)
 Thomas, supra note 2, at 223; see also Warden, 387 U.S. 294, 305 (1967) (“Searches and seizures may be ‘unreasonable’ within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property . . .”
 See generally Weeks, 232 U.S. 383; Mapp v. Ohio, 367 U.S. 643 (1963) (applying the Exclusionary Rule against the states).
 See Mapp, 367 U.S. at 649 (. . . “[t]he Weeks rule is of constitutional origin.”)
 See, e.g., United States v. Leon, 468 U.S. 897 (1984) (creating Good Faith exception to warrant requirement); Massachusetts v. Sheppard, 468 U.S. 981 (1984) (allowing introduction of evidence derived from a search using a boilerplate narcotics warrant for a homicide investigation because law enforcement reasonable relied upon the magistrate issuing the warrant); see also Leon, 468 U.S. at 939 (Brennan, J., dissenting) (arguing that the Exclusionary Rule was not just a judicial remedy but one required by “direct constitutional command”).
 See, e.g., Jardines, 133 S.Ct. at 1414-1415 (Scalia, J.) (rooting his analysis of using a drug dog to search the curtilage of a house in property principles deriving from Blackstone and the Framers); Wyoming v. Houghton, 526 U.S. 295, 300 (1999) (Scalia, J.) (“We inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed”).
 Kian, supra note 15, at 201.
 389 U.S. 347, 360 (Harlan, J., concurring).
 Thomas, supra note 2, at 221.
 Of course, even what the Amendment should protect is in the eye of the beholder, as Justice Scalia’s focus on property rights suggests.