American jurisprudence on searches and seizures

American jurisprudence on searches and seizures"The law prescribes strict adherence to regular procedure as safeguard against tyrannical rule."



The due process clause of the US Constitution is embodied in Fifth and Fourteenth Amendments which guarantee that no person shall “be deprived of life, liberty, or property, without due process of law.” This rule of law originated in the English common law which can be traced to the Magna Carta. It prescribes strict adherence to regular procedure as safeguard against tyrannical rule. In time US courts expounded on its meaning to include limitations on legislation and protection of certain areas of individual liberty from regulation.  

While the Fourteenth Amendment and the Fifth Amendment both include a due process clause, the Fifth Amendment’s due process clause applies to the federal government, while the Fourteenth Amendment’s due process clause applies to state governments. The US Supreme Court interprets these clauses to mean that they provide three protections: Procedural due process (in civil and criminal proceedings); substantive due process, a prohibition against vague laws; and as the vehicle for the incorporation of the Bill of Rights. 

The clause is capsulized in American jurisprudence to refer to “the embodiment of the sporting idea of fair play.” It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden v. Hardy, 169 U.S. 366).

As interpreted by the U.S. Supreme Court in the 1884 case of Hurtado v. California, the Court said: Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

The U.S. Constitutional proscription on unreasonable searches is embodied in the Fourth Amendment which provides: 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. The aim is to avoid the evils of general warrants by requiring that each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show “probable cause” to justify the search or seizure.

Like the Fifth and Fourteenth amendments and the rest of the Bill of Rights, the Fourth Amendment emanated from the seventeenth-and eighteenth-century English common law. However, the Fourth Amendment is unique in a sense that it arose out of a strong public reaction to three cases from the 1760s, two decided in England and one in the colonies, namely; Wilkes v. Wood, 19 Howell’s State Trials 1153 (C.P. 1763), and Entick v. Carrington, Howell’s State Trials 1029 (C.P. 1765), involving pamphleteers charged with seditious libel for criticizing the king’s ministers and, through them, the king himself.

In both cases, agents of the king issued a warrant authorizing the ransacking of the pamphleteers’ homes and the seizure of all their books and papers. (An aside is necessary at this point: search warrants were issued by agents of the Crown on their own initiative.) Wilkes and Entick sued for damages, claiming that the warrants were void and that the searches pursuant to them were therefore illegal. Both Wilkes and Entick won, with powerful opinions issued by Lord Camden, the judge in both cases. 

The third case was the Writs of Assistance Case. British customs inspectors seeking to stamp out smuggling in colonial Boston were given blanket search warrants, called writs of assistance, that permitted them to search anyplace where they thought smuggled goods might be. (The writs also allowed the inspectors to compel private citizens to help them carry out the searches—hence the writs’ name.) Some Boston merchants, represented by James Otis, sued, seeking a holding that the writs were invalid. The merchants lost, but Otis’s argument, with its ringing defense of individual privacy, became famous and strengthened opposition to British rule. John Adams later said of Otis’s argument that “then and there the child Independence was born.”

Historians generally agree that the Fourth Amendment was designed to affirm the results in Wilkes and Entick, and to overturn the result in the Writs of Assistance Case.

Three principles arose out of these three cases. First, the government should not be allowed to search without some substantial justification, some reason to believe the place being searched contains the evidence being sought. Second, searches, particularly of private homes, should not go beyond their justification. Third, the government should not use blanket warrants to evade the first two principles.

All these were eventually transplanted to the Philippines first through the American organic acts which applied the US Bill of Rights to our country and through the 1935, 1973, and 1987 Constitutions.

Topics: Magna Carta , Bill of Rights , Lord Camden , Writs of Assistance Case
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