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hi my name is Ron Wright and I'm a law professor here at Wake Forest University at the School of Law we're gonna be talking today about a Criminal Procedure doctrine that relates to something called general warrants it was a particular historical moment just at the start of the founding of the United States where we got our original ideas about what it means to be an unreasonable search and seizure and how that relates to something called a general warrant so let's go inside and talk about general warrants okay folks let's get started we're going to talk today about something called general warrants the general warrant was a legal device used at a particular moment in history that had a big impact on the law of search and seizure in the United States that is part of the daily routine of criminal courts today this device the general warrant was an early example of people claiming that the government was engaged in an unreasonable search and seizure and ever since that time that concern that worried about general warrants was built into the Fourth Amendment to the language of the Fourth Amendment as incorporated into the Bill of Rights and then it has become part of the daily practice in in criminal courts so we have two historical snapshots to consider one is an English case from from the 1760s from 1765 called the Carrington a famous case in the day and then we're also going to cross the Atlantic and look at the history happening at more or less the same time in the American colonies with the use of alley a similar legal device called a writ of assistance so we're going to look at those two legal moments to historical snapshots this is not a history lecture though I'm not trying to give you the entire background of what's going on in the legal world as of 1763 or 1765 instead what I want to do is show you those moments and then draw the connection to today to tell you what from those moments had some meaning for us today the thing that we keep referring back to as we argue today about unreasonable searches and seizures so first of all the first snapshot in tech V Carrington in tech V Carrington who's suing whom well basically what happens here is that there is a government search of a publisher and then the publisher interestingly sues the government in a civil suit that take him to court and say hey you broke into my place you tore things up you were looking for papers and you got to pay for the damages you know I want a jury to award me a lot of money you know British pounds I want you to award me a lot of money for the damage that the government agents did when they broke into my place and searched the place why were they breaking into a publisher but because this publisher was anti-government this publisher was writing was publishing things handing out pamphlets saying you know the king is rotten and his ministers are rotten and in particular you know this guy Carrington Lord Carrington is terrible or I'm sorry it's not Carrington it's ya know it is it's Nathan Carrington that's right so Nathan Carrington is the chief is the King's chief messengers the is the name so he's working for Lord Halifax so Lord Halifax says I want this publisher put out of business you can almost imagine him you know rubbing his hands together you know go find the evidence that this guy has been speaking ill of the King and of the Kings ministers so Lord Halifax orders Carrington to go out and search for the evidence of this bad speech this at that point the illegal speech and so Carrington goes out and does that and searches the offices of John intech who was the publisher suspected of wrongdoing a similar thing happened with a with another publisher named John Wilkes who's also pictured in the frame here and both were at the time heroes to the American colonists they all talked about John intech and John Wilkes and so today you can all over the place and find cities on the eastern seaboard that are named after john wilkes so Wilkesboro North Carolina North Wilkesboro or there are there's a Wilkesboro in or Wilkes Ville in Ohio there's Wilkes County Georgia there's a Wilkes Street in Alexandria Virginia this guy was a hero everybody was naming their places after John Wilkes the the the publisher who had the guts to criticize the king and then when the king came in searched for the pamphlets you know sued the Kings ministers for tearing up the you know the the publisher shop now why are we talking about a general warrant in this civil suit we're talking about a general warrant because the Kings ministers the guy on the you know out on the ground out in the field Carrington who was actually looking for the for the evidence he had in hand this thing he called a warrant a general warrant it was written by Lord Halifax and it said okay everybody this guy's doing my business you know this guy is is my guy he's here to do a king's search and so you got to cooperate wherever he goes wherever you know whenever it is he goes you got to cooperate with this guy open your doors let him come in and search and so traditionally in these civil suits they're called trespass suits because in the tort law you trespassed into property that's not you know it's meant to be private you're not allowed to be there in a trespass suit a government agent could traditionally waive this warrant around and say this is my defense you can't sue me for breaking in because I had permission I had written permission from the government and so then the plaintiffs reply the publishers reply that's that warrant isn't US isn't a defense it's not worth the paper it's written on it's it's not legal because it's got to be properly limited to be a true defense kind of warrant and this one is way too general way too broad to be legal so how does the the Court Rule here remarkably they reject the government's defense and they rule for the publisher same thing happened in the Wilkes case and along the way the court gives this wonderful language about the the importance of privacy in the home and of being able to exclude government and hold government accountable so you know the court says our law holds the property of every man so sacred that no man can set his foot upon his neighbor's clothes without his leave if he does he is a trespasser though he does no damage at all and if you're a trespasser you can be sued in tort and have to pay some damages and they also say the court also says this is Lord Camden speaking by the way from the King's Bench we can safely say that there is no law in this country to justify the defendants in what they have done if there was such a law it would destroy all the comforts of society for papers are often the dearest property a man can have so they were looking around for papers to prove that the publishers were you know slandering the king and even looking in papers is a violation of trespass law so that's the courts explanation for it's for its ruling they also draw some analogies to or they they discuss some previous practices involving searches for stolen goods where some warrants had effectively you know had been used effectively as a defence by the government searching agents but the court says that's different because those warrants were more limited those warrants for one thing they were only a defence if you actually found the stuff when you went there they're also a defense because the agents have to complete what's called a return that is they have to fill out a written report of what they did when they were on the property and bring it back to some of government official to to record what happened in the field rather than just walking around and doing you know and doing it at their own will without ever telling anybody recording what they did the earlier warrants were also valid here and unlike the general warrants here because they were based on some kind of what we would call today probable cause they were based on some reason to believe that you'll actually find something here they weren't just picking places out but they were able to articulate ahead of time this is why we think we're gonna find evidence of a crime in this place so articulating that ahead of time and then going in executing it in a limited way and coming back and reporting about it all those things were important to the legality of the earlier warrants and Lord Camden says none of that stuff's relevant here these are general warrants wide open too bit too much of a blank check for for government officials to serve as a real defense let's cross the Atlantic now and look at something similar that was happening in the in the United States or what was then the what were then the American colonies of the of Great Britain so we have here on the screen an example of something called a writ of assistance that is it is a writ a legal document that's handed to a government official to assist that official in making you know searching for evidence of a crime in this case looking for evidence that somebody had I was trying to cheat the King out of customs revenue taxes for imports and exports and so there were Kings agents running around the ports in Boston and elsewhere holding these writs of assistance saying you got to help me find the you know smuggled goods the goods that are coming in without us paying for the for the the taxes on the import taxes so I'll read you a few passages here there's kind of a long clearing of the throat and introductory you know george ii that is the king to all who receive this document anybody i command you now that you permit this person holding the writ to view and search and strictly to examine whatever property they want to examine i'm going to move to the next language here they can go these agencies can go into a place to enter into any vaults cellars warehouses shops or other places to search you can go pretty much anywhere to go searching for for anything that my i smuggled good a a good that hasn't where they we have not where you have not paid the customs tax that customs imposed and so you can go in and open any trunks chests boxes parcels or packs in today's language in closing this document says to any recipient we command you and every one of you from time to time to be aiding and assisting this government agent and his deputies and servants fail not at your peril so you got to help this guy he's looking for evidence of wrongdoing and he can go anywhere he can look for anything that's again and we call it a writ of assistance technically on this side of the ocean but that's another example of a general warrant so in the United States really interesting some merchants decided wait a minute that's illegal you can't just go anywhere and search for anything you have to have a good reason to come in and search for stuff and you have to convince somebody before you get your piece of paper and you're allowed to come in and so they go to a local lawyer James Otis a famous lawyer in the Boston area of the day and Otis takes on the case and he makes an argument for the merchants the trial or the argument happens in front of the Massachusetts Superior Court of Judicature in 1761 so just four years before the integrity Carrington case that we that we saw earlier and he makes this hour's long a five-hour long argument in front of the judges this thing goes on forever and what's really interesting is there's this guy in the audience there's this law student named John Adams who was ultimately the second President of the United States and a major framer of the of the Constitution at that point the picture here he's an old guy but at the time he's a 25 year old law student and he's sitting in the audience taking notes pretty much recording verbatim everything this guy says for five hours and then he walks away and says or he's looking back on this moment later in his life and he said 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 he says this is when the American Revolution started is when this lawyer was talking in front of judges so this is like a big moment for us in terms of accountable government really interesting at the time James Otis lost so he has his claim it looks like four of the five judges are going to go along with him and then the chief judge who was appointed directly by the king says we got to slow things down here I'm gonna delay the decision of this matter and so he sort of shuts the proceeding down and they wait awhile new king takes the throne George the third they start using these general warrants a little more often or actually a lot more often in the in Great Britain and so then they reconvene later in the court at that point says okay well we've kind of changed our minds we've cooled our heels a little bit and it I guess since they're doing this over in Great Britain will allow let him do it here this is an example of winning the battle but losing the war because even though this was declared legal at the time John Adams and his whole generation decided none of this is going to happen when we're in charge and so they write a new constitution we fight a Revolutionary War we're sitting down and drafting a new constitution including a new Bill of Rights it's got a Fourth Amendment in it and it's got this language about you know the government shall not conduct any unreasonable searches and seizures the right of the people to be free from unreasonable searches and seizures shall not be violated for that language when they wrote that language John Adams and his cohort had in mind the general warrants the writs of assistance they said never again you know we're not gonna let that happen in in the United States under the Bill of Rights so what what lessons can we draw about this today I mean this was a long time ago this is in the 1760s and you know over 200 you know I guess now 250 years later what lessons can we draw from this well for one thing we know something about the the particular kind of government action that bothered the framers these general warrants had a few characteristics involved with them first of all they were what we call what lawyers call ex parte that means the government can go government agents can go by themselves and get the warrant they just kind of cooked up the warrant for themselves and they didn't have to get anybody else to sign off on it so it mattered that Lord Halifax issued the general warrant rather than a judge they were also there was also no probable cause to support the warrant they didn't go in and say here's why I think if I go to this particular warehouse I'm gonna find these untaxed goods that have been smuggled in and hidden in the warehouse they didn't have because they didn't have to write down and articulate their probable cause you have no way of knowing whether there's any you know whether there's any odds whether there's any good probability that the government's going to succeed or whether they're just kind of randomly going on a fishing expedition and searching everybody so no probable cause was an important concern of the framers here for the general warrants there was no accounting after the fact so there was there was no what we call a return there was no inventory written down of what they searched or what they found there were no witnesses recorded as to carrying out the search that bothered them at the time there was no time limit on it it was just here's this piece of paper it's good for as long as the paper exists rather than sometime you know within a reasonable time from now pretty soon you got to get up there and find out whether these goods are really in the warehouse where you heard that they were being hidden so no time limit is the problem with a general warrant another class of problems with both the writ of assistance and the general warrant is that is that they tried to exempt government agents from the operation of law and so what we learn from the whole writ of assistance controversy and the Integra Carrington line of cases in Great Britain is that all government agents are subject to the requirements of law that includes customs agents people who were for untaxed Goods and you know being imported and smuggled in but it's also true today of police officers and others it's true not just of criminal law enforcers but tax enforcers and other regulatory enforcers all of them have some kind of obligations under law and more particularly under the Fourth Amendment they can't conduct unreasonable searches and seizures and then finally one last lesson that you can draw from this from these two episodes I think is that one concern of the framer is about discretionary enforcement by officers you can't just tell officers in the field go out and use your best judgment go out and look around for you know for publishers papers that prove that this person's been slandering the king or look for this these untaxed imported smuggled goods go out and do your best that doesn't cut it you know telling a government agent just go out and do your best you've got to actually articulate what their job is and how they're to carry it out they've got to operate under articulated standards so they've got to operate according to law and not just according to use your best judgment we've got here on the board the text of the US Constitution the Fourth Amendment of the US Constitution and notice that it's split into half there's the first half highlighted here in red 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 then there's the last half highlighted in green that says 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 so an interesting historical question here is what's the relationship between the first half in the last half between the red stuff and the green stuff some people say well the green stuff tells you exactly what it means to be a reasonable search or seizure a reasonable search or seizure has to be supported by a warrant the warrant has to particularly describe where you're going to search and when you're going to search it and it's got to be supported by probable cause the government's got to give you some reason to believe that they that they will find things there they got to be able to be able to articulate it to a judge beforehand so that's one school of thought that is the green text the last half of the text tells us what the first half means you interpret reasonableness in light of the warrant and probable cause clauses the second school of thought is that these are two separate thoughts that they are relevant to unreasonable searches and seizures but that warrants and probable cause are not the principle or the only way of establishing that a search or seizure could be reasonable so that the read half the first half of the clause is just a free-standing requirement of reasonableness and then an afterthought oh by the way once you get these warrant things they've got to be limited because governments have abused warrants in the past they've used them as a way to try to defend themselves from juries who were awarding 3,000 pounds against government agents who were searching printers offices and so we don't want government agents trying to use warrants as this kind of over broad defense against the the righteous indignation of a jury who tells the government they have to stay within within bounds so two schools of thought one of them is reasonableness is standing on its own and warrants are discussed here as a way of limiting warrants the other school of thought is that warrants are real warranted searches are really the quintessential reasonable search we're gonna watch how these different thoughts play out over cut over time in the law of search and seizure and how these arguments play in today whenever we have a whenever we have a new government innovation for how to collect information you can guarantee this if somebody says why this is a general warrant it's not a compliment it's meant as an insult it's meant as a way of saying no this is uncontrolled unexplained government intrusion into private lives and we've got to stop it here so they're trying to be James Otis or or John Adams all over again when they're claiming that today's effort is a is a general warrant we'll talk next time about some modern examples of these arguments coming up so see you then