February 10, 2005

How Does The Supreme Court Work?
#2 Writs of Assistance, Exclusionary Rules and Poisoned Fruit

I wrote a piece on SCOTUS in December that I intended to be a multi-part thing. I expect at one point to post them on my website under tutorial issue articles, but for right this second the blog will do. The first one is available here.

There is an American Founder who provided moral, political and intellectual life and passion to the early patriots and classical liberals in the 1760s and 1770s. This man, who even most educated, intelligent people would have trouble identifying, made one of the earliest and most powerful cases for the Fourth Amendment and the natural rights of privacy, liberty and property. His name was James Otis, and, like many of the Founders, he has a brief but laudable anecdote accompanying his claim to fame.

As a lawyer in Massachusetts (back when New England was a hotbed for natural rights theorists, small government radicals and proto-libertarian firebrands) Otis was the Attorney General for the colony. He had been appointed in the 1750s, a political conservative eager to prosecute smugglers on behalf of the Crown. In 1761, a case came up requiring him to defend the actions of a Customs Officer. He examined the case and discovered that the government's position was in the wrong. Since his career had already been stalled (political rival Hutchison, a fierce Tory and eventually a widely-hated Governor, had been appointed past Otis) he resigned his post as Attorney General and appeared at trial to argue the case against the government - giving a lengthy, passionate speech as was common at the time.

His case was against Writs of Assistance and the abuse of the natural rights of colonists and merchants by customs officials. Relying heavily on the concepts of life, liberty and property, Otis explained that the Writs of Assistance violated the natural freedoms of the colonists. His five-hour oration proposed that, since natural rights were inviolable, the act of Parliament that authorized them was by necessity null and void.

A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.

Otis continued agitating and advocating for the rights of American colonists after the case was lost, operating correspondence committees and participating in other activities against the Stamp Act and the Townshend Duties. The reason most people haven't heard of him is because he was beaten over the head with a cane (somewhat reminiscent of the 1856 caning of Charles Sumner by a South Carolina Representative) in 1769 by a British customs agent after Otis had written and published a scathing newspaper attack against him. Otis suffered severe brain damage and was unable to participate in public affairs. He spent most of his days walking around Boston, mocked by passersby for his strange, brain-damage-induced behavior. He was electrocuted by lightning in 1783.

Before that tragic, unjust ending, Otis was very influential in political matters. John Adams, then a young Massachusetts attorney, witnessed Otis' oration against Writs of Assistance. Adams learned a lot from Otis, and called that day in court the first scene in the first act of resistance to oppressive British policies. By drawing so heavily and primarily on natural rights theory, Otis gave inspiration to both John Adams and Samuel Adams.

He helped form many of the moral and political arguments Americans would later use in opposition to the Writs of Assistance. Although only the Revolution finally ended the writs, by the 1770s it became so unpopular that customs agents feared the reaction of the people to issuing any. Public pressure and discourse succeeded where courts and Governors failed (When the government fears the People, that is Liberty. When the People fear the Government, that is tyranny. - Thomas Jefferson).

So what were these writs and why were they so horrible? A Writ of Assistance was a precursor the modern-day warrant; a document authorizing a search of a place or ship for suspected illegal activity. The problem with the Writs of Assistance was that they 1) didn't have to be specific about the things sought, 2) didn't have to be specific about the locations being searched, 3) didn't have to be specific about the person or persons being searched, 4) didn't ever expire, 5) could at that time be authorized by the very same person conducting the search, without direct approval of a court, judge or Governor.

Naturally, this was a pretty serious matter. It would be like the cops walking around everywhere with a permanent, infinite warrant - anything they wanted to check or invade could be checked, even if they didn't have a good reason or probable cause for doing so. Writs of Assistance are still in use today in Canada and elsewhere for customs and border patrol, though they have been somewhat reigned in (especially the issuing privilege) and are controversial to apply.

The Fourth Amendment came into being out of direct opposition to the Writs of Assistance: 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.

Sounds great, right? In simplest terms, the police can't mess with you without a good reason for thinking you did something wrong, and in all normal cases they have to get written permission to mess with you. If there has to be crime, then there have to be police, and if there have to be police searches, this is a pretty damned good improvement over the Writs of Assistance. The problem is in enforcing it.

What if the police don't get a warrant and have no probable cause or any other good reasons ('exigent circumstances') for violating your privacy, but then they find you did break the law? Well, the first instinct of anybody should be that we're dealing with a criminal that get caught, so let's fry 'em. The problem is, any fair-minded person should then remember the Writs of Assistance. Sure, we can fry this one criminal today, but we would quickly destroy the entire system of warrants and revert to a system where the police could do any search they wanted (or at least, any search they wanted as long as they found evidence of criminal wrongdoing).

There has to be a check against this unconstitutional, illegal and inappropriate behavior. We could arrest the police agents that committed bad searches, but then the police as a group would get away with it and people would be subject to harassment and invasion of privacy without good reason. This is not appropriate. A bad search is a null search - if you don't follow the appropriate protections of privacy, it's as though the search never happened.

This is the exclusionary rule. Evidence obtained through an illegal search might as well not exist. Since it was not obtained appropriately, whether through a bad search, a coerced confession or testimony from a tortured suspect, it is treated as though it was not obtained at all. For legal purposes, it can't exist. This is how we protect the Fourth Amendment.

Well, what if a bad search leads to further investigation and then subsequent searches, authorized with appropriate warrants, find good evidence of criminal wrongdoing? Those came from the good searches, not the initial bad one, right? Wrong. Because the first search was bad, the subsequent searches are tainted. The analogy is 'fruit from a poisonous tree;' if the tree is poison, then so is the fruit. The exception to this is the 'inevitable discovery.' This requires conjecture and hypothetical thinking; had the first search never taken place, would the subsequent searches (or the evidence found in the subsequent searches) have been found anyway? This might happen if a new witness steps forward, unrelated to any illegal acts or searches, or if some testimony comes to light that would have led to the evidence being discovered.

These are the tools with which we protect ourselves, our rights, our privacy and liberty - the sanctity or our homes and persons - from the unlimited, unforgiving grasp of the government or the police. At times the situations may seem silly, counter-intuitive and even unjust, but this is the system that is best for liberty and for justice in the long run; we cannot trade the incarceration of a few criminals today with the violation of many innocents tomorrow. These rules together form a mighty wall that, in a manner simmilar to Jefferson's wall of separation between church and state, holds back the potential for tyrannical police actions but allows access for appropriate, justified investigation.


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