Reconstructing the Fourth Amendment Reconstructing the Fourth Amendment A History of Search and Seizure, 1789–1868 ANDREW E. TASLITZ a NEW YORK UNIVERSITY PRESS New York and London NEW YORK UNIVERSITY PRESS New York and London www.nyupress.org © 2006 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Taslitz, Andrew E., 1956- Reconstructing the Fourth Amendment : a history of search and seizure, 1789-1868 / Andrew E. Taslitz. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-8147-8263-7 (cloth : acid-free paper) ISBN-10: 0-8147-8263-9 (cloth : acid-free paper) 1. Searches and seizures—United States—History. 2. United States. Constitution. 4th Amendment—History. I. Title. KF9630.T37 2006 345.73'054409034—dc22 2006010916 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Contents Preface vii Acknowledgments xi 1 Plugging into the Fourth Amendment’s Matrix 1 PART I: POLITICAL VIOLENCE AND THE ORIGINAL FOURTH AMENDMENT 15 2 Violence as Political Expression 17 3 The Quantity and Quality of Evidence 45 4 Modern Implications I: Peoplehood and Interbranch Responsibilities 55 5 Modern Implications II: Precedent and Political Meaning 68 PART II: THE RECONSTRUCTED FOURTH AMENDMENT 91 6 Expressive Violence and Southern Honor 95 7 Slave Locomotion 106 8 Mobility’s Meaning for the South 131 9 Mobility’s Meaning for the North 157 10 Privacy and Property 187 11 Civil War and Reconstruction 226 12 Law on the Street 258 Notes 279 Index 343 About the Author 363 v Preface As a teenager and even as a preteen, I remember being appalled by the large number of black faces I saw on TV whenever there was a crime story on the news or in pulp fiction. It seemed odd to me, a white kid growing up in the Bronx, that there were so few white faces, just as a matter of sheer probabilities. I grew up in a working-class neighborhood in which many kids, white or black, were at least involved in minor crime, from drug use to graffiti to vandalism and even minor arson (torching outdoor garbage cans to see the fire trucks come). Yet I knew not a single white kid arrested for these behaviors. I am sure there must have been some, but not within my circles. These thoughts might seem odd for a twelve- or thirteen-year-old boy, but I was a bookish kid who read widely and was always sensitive to unfairness. I was close to my dad, and he labored ten to twelve hours each day, six days a week, to feed his family, still barely making enough money to do so. It seemed to me that something was wrong with a world in which a good man who labored so hard could receive so little in return. His plight made me attentive to unfair inequalities in the world. When I found them, I tried to understand them, usually failing in that endeavor. The need to understand never left me, and, as I aged, my quest made the world seem more, not less, complex and confusing. I promised neither to suffer my dad’s fate nor to forget it. My way out was education. I studied hard, seeing the legal profession as a means for making a decent living while doing some good. I somehow never bought into the jokes about greedy lawyers or even my own granddad’s pointed insistence on pronouncing the word “lawyer” like “liar.” My journey paid off when I started working in my twenties at the Phila- delphia, Pennsylvania, district attorney’s office. That work did not, however, bring me the clarity that I sought. On my very first day in court, I was struck, once again, with the sea of black faces. The face of almost every defendant hauled into court was black, but this was equally true for most of the victims. Offenders and accusers alike shared one primary characteristic: poverty. For all whites’ fear of crime, and too many did suffer its sting, it was the African American community in that city that bore the brunt of both the problem of criminality and the criminal “justice” solution. Later in life, I became a law professor, teaching and writing about criminal justice. In that capacity, I became involved in the innocence movement as it became clear that too many of those in our jails and prisons did not belong there. Some significant portion of those injustices stemmed from police mis- takes, even perfectly well-meaning officers focusing too early on one theory of vii viii PREFACE who did the crime—perhaps because of subconscious stereotyping about likely suspects—while ignoring contradicting evidence. I also heard increasingly more stories of whites suffering insults and abuse at the hands of the police, particularly during traffic stops. Meanwhile, the war on drugs was taking its toll on Hispanic communities, the war on terror on Muslim ones. The range of permissible warrantless, suspicionless searches and seizures expanded rap- idly, with few political obstacles standing in the way of the crime and terror warriors. My growing concerns did not stem from any soft-heartedness toward crimi- nality. To the contrary, I became a prosecutor because of my sympathy for vic- tims and my keen appreciation of the virtues of retribution. That appreciation was born of the fear of crime in the neighborhoods of my youth, my dad’s hav- ing been mugged three times at gunpoint, and my own experiences of being mugged and assaulted. My zest for retribution has dimmed as time has tem- pered my own sense of infallibility in such matters and taught me the com- plexity of the human heart. But my zeal for public safety, both from street predators and governmental ones, remains strong. Yet the current system seemed to be failing on both counts, bringing neither security nor freedom. Still worse, the current state of affairs seemed radically inconsistent with both my high school civics lessons about the nature of American democracy and my own understanding of American history. High school civics taught me that our constitutional culture was one of respect and equality for all citizens. History taught me that security and freedom were complementary, not contra- dictory. My attention began to focus on the start of most criminal cases—the ar- rests, stops, frisks, wiretaps, and other searches and seizures that identify sus- pects and bring them into the criminal process. Something seemed amiss at this entry point. The Fourth Amendment to the U.S. Constitution, prohibiting “unreasonable” searches and seizures, governs that entry point. What particu- larly worried me was the public image of the constitutional law of search and seizure as just a way to free the guilty on a “technicality.” As I recalled the his- tory of the Fourth Amendment, it was a tale of struggle against the oppressions of the British Crown, which saw searching and seizing as a means of suppress- ing political dissent, weakening the opposition, and sowing discord among its members. In short, it was as much about the political rights of the “People” as of any individual suspect, and, indeed, the Fourth Amendment speaks of the “right of the People,” something done in only a very few other constitu- tional provisions. Yet even this history seemed incomplete to me, for the origi- nal Fourth Amendment, as ratified in 1791—indeed the entire original Bill of Rights—applied only to the federal government, not to the states. It was one of the functions of the Fourteenth Amendment, ratified in 1868, to apply or “incorporate” the Bill of Rights, including the Fourth Amendment, against the PREFACE ix states. This 1868 constitutional amendment was one of three—the Thirteenth and Fifteenth Amendments being the other two—designed to end the vestiges of slavery. The understandings of search and seizure practices during slavery and Reconstruction thus seemed particularly relevant to understanding the mutated or reconstructed Fourth Amendment of 1868. Then, as now, know- ing the African American experience was central to knowing the meaning of America. So, in a search for the complete story, I dug further into the history of both the original and the mutated Fourth Amendments. What I found did not always match my preconceptions, but it did confirm my sense that we were on the wrong path. This book looks to the past to shine light on where we once were headed in the hope that we might thereby correct our future course. The circuitous path that brought me here began with exposure to crime on the streets and, as will soon be told, it is in that same place—on the streets—that the Fourth Amendment was born and raised.