The Warrant Clause

. . . 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.

—Judge Elizabeth L. Branch, Francis Aul, & Austin Mayron

Introduction

The Warrant Clause, which follows the Fourth Amendment’s protections against “unreasonable searches and seizures,” regulates the issuance of warrants—judicial writs that authorize law enforcement officers to make searches, seizures, or arrests. A 1750 legal dictionary, for example, defined a warrant as a “Precept under Hand and Seal to some Officer to bring an Offender before the Person granting it.”¹

The text of the Warrant Clause is straightforward. A warrant must be made upon probable cause, be supported by oath or affirmation, and describe with particularity the place to be searched or the persons or things to be seized. Beyond those three requirements, however, courts and commentators have confronted two important questions about the clause’s meaning: What does a warrant require, and when is a warrant required? Given the relative clarity of the text and robust historical evidence, the meaning of the Warrant Clause has largely been settled. However, scholars continue to debate what constitutes “probable cause” and when a warrant is required.

History Before 1787

During the colonial era, a warrant was not understood to be required for a government official to execute a search or seizure.² Nevertheless, an officer ordinarily could be sued by the target of a search and be held liable for money damages in a trespass suit if the search was later found to be unreasonable.³ A warrant was an absolute defense to such a suit and immunized the officer from liability.⁴ Concerns arose, however, from the government’s use of so-called general warrants that lacked “specificity as to whom to arrest or where to search” or lacked “a complaint under oath or an adequate showing of cause.”⁵ (See Essay No. 166.)

The lack of adequate procedural safeguards in obtaining warrants gained widespread attention during three seminal cases from the 1760s.⁶ In the Writ of Assistance Case (1761), sometimes referred to as Paxton’s Case, Boston merchants challenged the renewal of the general warrant empowering Massachusetts customs officers to search “any House” for “prohibited or uncustomed” goods.⁷ Although the court ruled against the merchants and renewed the warrant, James Otis famously argued to the court that general warrants violated natural rights and were “against the fundamental Principles of Law.”⁸

Wilkes v. Wood (1763) involved a general warrant calling for the arrest of “any person suspected of authoring or publishing” a pamphlet disparaging King George III and the seizure of “any papers revealing [its] authorship.”⁹ Based on a single general warrant, “English officers searched at least five houses and arrested at least forty-nine people.”¹⁰ One of the people searched was John Wilkes, a member of Parliament and author of the pamphlet. Wilkes brought a successful trespass action challenging the general warrant. Lord Camden found that the warrant violated the common law. He observed that “no offenders[’] names [were] specified in the warrant,” which effectively empowered officers “to search wherever their suspicions may chance to fall.” Scholars believe Wilkes to be “probably the most famous case in late eighteenth-century America.”¹¹

Finally, Entick v. Carrington (1765) involved a general warrant directed at John Entick, an English author who wrote anti-government pamphlets.¹² Unlike the warrant in Wilkes, this warrant specifically named Entick as its target, but it did not specifically describe the papers to be seized from Entick. Lord Camden ruled that the warrant targeting Entick was an illegal general warrant and violated the common law.

These three decisions imposed three clear standards. First, warrants could be issued only upon probable cause, a standard that can be traced back to the early common law.¹³ In the seventeenth century, Sir Matthew Hale discussed “probable cause of suspicion” and “reasonable cause of suspicion” as interchangeable standards connoting “a reasonable basis for suspecting the individual and making further inquiry.”¹⁴ Second, warrants must be supported by a sworn evidentiary showing by oath or affirmation.¹⁵ At common law, “only a person who had personal knowledge of an offense could swear out a complaint and warrant.”¹⁶ Third, warrants must describe with particularity the place to be searched or the persons or things to be seized.

Following independence, many states incorporated protections against the use of general warrants into their constitutions. For example, the Virginia constitution of 1776 declared that “general warrants are grievous and oppressive, and ought not to be granted.”¹⁷ With such warrants, “an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence.”¹⁸ Other states adopted similar constitutional protections, including Maryland, Massachusetts, North Carolina, Pennsylvania, and Vermont.¹⁹ This language would parallel the Fourth Amendment’s Warrants Clause: Warrants had to be based on cause or foundation, had to be supported by oath or affirmation, and had to name or describe the place to be searched or the persons or things to be seized.

The Constitutional Convention

During the Philadelphia Convention, there was no recorded debate on warrants. Near the end of the Convention, however, George Mason proposed that the Constitution be “prefaced with a Bill of Rights” to “secur[e] the rights of the people where requisite.”²⁰ Mason’s view did not prevail at the Convention, but the Constitution’s absence of a Bill of Rights became one of the Anti-Federalists’ principal objections.

The Ratification Debates

During the ratification debates, Anti-Federalists raised numerous concerns about warrants. In the Virginia ratifying convention, Patrick Henry warned that “the necessity of securing our personal rights seems not to have pervaded the minds of men; for many other valuable things are omitted.” Henry would have prohibited “general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime. . . .”²¹ Similar objections were raised at other state ratification conventions.²² The New York convention proposed an amendment to the Constitution in its formal ratification document. The amendment guaranteed (1) “[t]hat every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property”; (2) prohibited “all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause”; and (3) ruled “that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.”²³ Other states included similar ratification statements. They made clear that their votes to ratify were contingent on a Bill of Rights later being incorporated into the Constitution.²⁴

In Federalist No. 84, Alexander Hamilton countered that a Bill of Rights was “not only unnecessary in the proposed Constitution, but would even be dangerous.” Hamilton warned that such an enumeration “would contain various exceptions to powers not granted.” As a result, a Bill of Rights “would afford a colorable pretext [for the Constitution] to claim more [federal powers] than were granted.”

The First Congress

During the First Congress, Hamilton’s fellow Federalist, James Madison of Virginia, changed his position. Representative Madison drafted what would become the Bill of Rights. Madison’s draft provided that “[t]he rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.”²⁵ This original draft thus tied the notion of unreasonableness to the issuance of a general warrant.²⁶

However, a committee changed the text to read: “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. . . .”²⁷ These substantive changes created two conjunctive clauses, one protecting the individual right against unreasonable searches and seizures and one prohibiting the issuance of any warrant without meeting the specified conditions. The committee’s version was adopted by Congress without objection and was later ratified by the states.

Thus, the Warrant Clause as originally understood narrowed the “safe harbor” defense of a warrant by incorporating the procedural requirements for obtaining one that were established in state constitutions. The Warrant Clause says nothing about obtaining a warrant as a precondition to carrying out a lawful search or seizure.²⁸

The First Congress, which proposed the Fourth Amendment, also enacted statutes that reflected the probable cause standard. For example, a 1789 statute authorized officials to search any ship if they had “reason to suspect” the concealment of goods.²⁹ A 1791 statute authorized officials to search for fraudulently concealed distilled spirits wherever such spirits “shall be suspected to be so fraudulently deposited.”³⁰

Judicial Precedent

In Locke v. United States (1813), the U.S. Supreme Court described the “fixed and well known meaning” of probable cause as “circumstances which warrant suspicion.”³¹ The Court adopted a similar formulation of the standard in Stacey v. Emery (1878): “facts and circumstances . . . such as to warrant a man of prudence and caution in believing that the offence has been committed.”³² Accordingly, the probable cause standard has long been understood as a flexible inquiry requiring less than proof but more than mere speculation to convict someone of an offense.

The Court’s modern view of the Warrant Clause is best summarized in Katz v. United States (1967): “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”³³ Originalist scholars have questioned whether this “warrant-preference” construction is consistent with the original understanding of the Warrant Clause.³⁴ Specifically, scholars have noted the lack of historical support for an “across-the-board warrant requirement” unmoored from the factual context of the search. Instead, the historical record confirms the Founding-era understanding of warrants as defenses to trespass actions for unfruitful searches and seizures, not as prerequisites for a search or seizure.

The modern understanding of the Warrant Clause departs from the historical context in two other ways. First, in a departure from Wilkes, warrants came to be issued by judicial officers rather than by executive or administrative officials. This development likely occurred out of a preference for a neutral arbiter and to avoid a situation where the executing authority rubber-stamped its own warrants. Administrative warrants by the executive branch are less common today.³⁵

Second, and more important, the Supreme Court has interpreted the Warrant Clause together with the Searches and Seizures Clause to hold that a warrant is required in advance of a search in circumstances that go well beyond the original understanding. Because the “touchstone” of the Fourth Amendment’s Searches and Seizures Clause is “reasonableness,” the Court has held that warrants are required for searches of places where persons enjoy a reasonable expectation of privacy.³⁶ The paradigmatic example is a person’s home and its surrounding area, or curtilage.³⁷ By contrast, searches and seizures of a person and his effects outside the home may not require a warrant, depending on the context and circumstances.

The Court has also extended this modern composite warrant and search-and-seizure doctrine to new technologies. United States v. Jones (2012) held that law enforcement officials must obtain a warrant before attaching a GPS tracking device to a vehicle to monitor its movements for an extended period of time.³⁸ The Court’s analysis relied heavily on the history of trespass law at the Founding with the understanding that the Fourth Amendment, at a minimum, must offer the same degree of protection that individuals enjoyed when it was adopted. United States v. Carpenter (2018) held that the government’s acquisition of historical cell-site location records was a search under the Fourth Amendment requiring a warrant.³⁹

Summary

Police are required to obtain a warrant for most searches and seizures unless a judicial exception applies. The most prominent exceptions include:

Arrest: A warrant is not required, for example, when an officer has probable cause to believe that a suspect committed a crime in the officer’s presence.⁰ Consent: A warrant is not required when an individual consents to the search of his person or property.⁰ Plain View: A warrant is not required when an officer has a right to be in a position that affords him “plain view” of the objects to be searched or seized.⁰ Exigent Circumstances: A warrant is not required in an emergency when officers have insufficient time to seek a warrant to prevent the destruction or removal of evidence, a suspect from fleeing, or danger to the public.⁰ Incident to Arrest and Inventory: A warrant is not required for a search incident to arrest. Likewise, officers may conduct an inventory search of a person’s belongings after an arrest.⁰ However, this exception does not extend to digital information on an arrestee’s cell phone.⁰ Automobiles: A warrant is not required to search an automobile if an officer has probable cause to believe that the vehicle contains contraband.⁰ Stop and Frisk: A warrant is not required to conduct a non-intrusive search of a suspect if an officer has reasonable suspicion that a crime has been, is being, or is about to be committed by the suspect.⁰ Special Needs: A warrant is not required in other unique circumstances where there are so-called special needs.⁰

Open Questions

• Administrative agencies often conduct warrantless searches related to health and safety, environmental, revenue, and other regulations.⁴⁰ Are these searches consistent with the original public meaning of the Warrant Clause?

1. Warrant, Giles Jacob, A New Law Dictionary (6th ed. 1750). ↩︎
2. William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 409 (1995). ↩︎
3. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1178 (1991). ↩︎
4. Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53, 60 (1996). ↩︎
5. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 558 (1999). ↩︎
6. Id. at 562 n.20; 95 Eng. Rep. 807 (C.P. 1765). ↩︎
7. Paxton’s Case of the Writ of Assistance, in Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay Between 1761 and 1772, 51–57 (1865). ↩︎
8. Laurent Sacharoff, The Broken Fourth Amendment Oath, 74 Stan. L. Rev. 603, 653–54 (2022). ↩︎
9. 98 Eng. Rep. 498 (C.P. 1763); Wesley MacNeil Oliver, The Modern History of Probable Cause, 78 Tenn. L. Rev. 377, 397 (2011); Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 U. Pa. J. Const. L. 1, 14 & n.41 (2007). ↩︎
10. David E. Steinberg, An Original Misunderstanding: Akhil Amar and Fourth Amendment History, 42 San Diego L. Rev. 227, 259 (2005). ↩︎
11. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 772 (1994). ↩︎
12. 95 Eng. Rep. 807 (C.P. 1765). ↩︎
13. Joseph D. Grano, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 U. Mich. J. L. Reform 465, 479–80 (1984). ↩︎
14. 2 M. Hale, The History of the Pleas of the Crown 91–92 (1736). ↩︎
15. Oath, Thomas Potts, A Compendious Law Dictionary 465 (1803); Warrant, Giles Jacob, A New Law Dictionary (6th ed. 1750). ↩︎
16. Davies, supra at 651. ↩︎
17. Va. Const. of 1776, § 10. ↩︎
18. Id. ↩︎
19. Md. Const. of 1776, art. XXIII; Mass. Const. of 1780, art. XIV; N.C. Const. of 1776, art. XI; Pa. Const. of 1776, art. X; Vt. Const. of 1777, art. XI. ↩︎
20. 2 Farrand’s 470. ↩︎
21. 3 Elliot’s 588. ↩︎
22. Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1285–98 (2016). ↩︎
23. 1 Elliot’s 328. ↩︎
24. Donohue, supra at 1290–92. ↩︎
25. 1 Annals of Cong. 452 (1789). ↩︎
26. Luis G. Stelzner, The Fourth Amendment: The Reasonableness and Warrant Clauses, 10 N.M. L. Rev. 33, 39–40 (1980). ↩︎
27. Id. at 40. ↩︎
28. Amar, The Fourth Amendment, Boston, and the Writs of Assistance, supra at 55–56, 60. ↩︎
29. Act of July 31, 1789, § 24, 1 Stat. 29, 43. ↩︎
30. Act of March 3, 1791, § 32, 1 Stat. 199, 207. ↩︎
31. 11 U.S. 339, 348. ↩︎
32. 97 U.S. 642, 645 (1878). ↩︎
33. 389 U.S. 347, 457 (1967). ↩︎
34. Davies, supra at 738–50. ↩︎
35. Camara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523 (1967); Griffin v. Wisconsin, 483 U.S. 868 (1987). ↩︎
36. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). ↩︎
37. Payton v. New York, 445 U.S. 573 (1980); Florida v. Jardines, 569 U.S. 1 (2013). ↩︎
38. 565 U.S. 400 (2012). ↩︎
39. Carpenter v. United States, 585 U.S. 296 (2018). ↩︎
40. Geoffrey G. Hemphill, The Administrative Search Doctrine: Isn’t This Exactly What the Framers Were Trying to Avoid?, 5 Regent U. L. Rev. 215, 216 (1995). ↩︎