Journal of Criminal Law and Criminology
+(0)!
5
..0! -/%(!
%*/!-
"Dearest Property": Digital Evidence and the
History of Private "Papers" as Special Objects of
Search and Seizure
Donald A. Dripps
+((+2/$%.* %/%+*(2+-'./ $7,..$+(-(3+))+*.(2*+-/$2!./!-*! 0&(
-/+"/$! -%)%*(2+))+*.* /$! -%)%*(-+! 0-!+))+*.
6%.-%)%*(2%.-+0#$//+3+0"+-"-!!* +,!*!..3+-/$2!./!-**%1!-.%/3$++(+"2$+(-(3+))+*./$.!!*!,/! "+-
%*(0.%+*%*+0-*(+"-%)%*(2* -%)%*+(+#33*0/$+-%4! ! %/+-+"+-/$2!./!-**%1!-.%/3$++(+"2$+(-(3+))+*.
!+))!* ! %//%+*
+*( -%,,. "Dearest Property": Digital Evidence and the History of Private "Papers" as Special Objects of Search and Seizure
>9;>9;9<=:=8?
$7,..$+(-(3+))+*.(2*+-/$2!./!-*! 0&(1+(%..
0091-4169/13/10301-0049
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 103, No. 1
Copyright © 2013 by Northwestern University School of Law Printed in U.S.A.
49
“DEAREST PROPERTY”: DIGITAL
EVIDENCE AND THE HISTORY OF
PRIVATE “PAPERS” AS SPECIAL OBJECTS
OF SEARCH AND SEIZURE
DONALD A. DRIPPS
*
TABLE OF CONTENTS
I. THE TECHNOLOGICAL CRISIS IN MODERN DOCTRINE ............................. 53
A. Searches for Digital Evidence Pursuant to Warrant or the Vehicle
Exception to the Warrant Requirement ................................................... 54
B. Searches of Digital Evidence Incident to Lawful Arrest .................... 59
II. THE CONTROVERSY OVER LIBELS, GENERAL WARRANTS, AND THE
SEIZURE OF PAPERS, 1763–1766 ................................................................. 61
A. The North Briton No. 45..................................................................... 61
B. General Warrants and the Seizure of Papers: The House of Commons
Temporizes .............................................................................................. 63
C. The Tort Suits Against the King’s Messengers and the Secretary of
State ......................................................................................................... 64
D. The Pamphlet War of ’64 ................................................................... 69
E. Endgame in Parliament ....................................................................... 72
III. THE SEIZURE OF PAPERS IN AMERICA FROM THE ENGLISH
CONTROVERSY THROUGH THE FOUNDING ERA .......................................... 72
A. American Interest in the English Controversy .................................... 72
B. Reception of the Common Law of Search and Seizure ...................... 75
C. Statutory Respect for the Rule of Entick............................................. 77
D. State Search-and-Seizure Provisions Before the Constitution
of 1789 ..................................................................................................... 79
*
This Article has benefited greatly from conversations with Al Alschuler, George
Thomas, and the participants in workshops at the University of San Diego and the University
of Illinois Colloquium on Constitutional Theory, History and Law. The students in
Professor Kurt Lash’s Illinois colloquium made such excellent comments that I feel
obligated to thank them individually: Levi Armlovich, Kerry Burnet, Carol Celestine, Anne
Coghlan, Sunny Desai, Leslee Friedman, Samantha Gibson, Elisabeth Gusfa, Adam Joines,
Samuel Kauffman, Zhijun (James) Liu, Feisal Mohamed, Matthew Nelson, Deric Orr,
Timothy Pruitt, Nicholas Tipsord, Christopher Tourek, John Tully, Robert Young, and Aise
Zhang.
50 DONALD A. DRIPPS [Vol. 103
E. Anti-Federalist Concerns and Amendments Proposed During
Ratification of the 1789 Constitution ...................................................... 79
F. Congressional Drafting of the Fourth Amendment in 1789 ................ 80
G. Early Practice ...................................................................................... 81
IV. THE UNTOLD STORY OF BOYD V. UNITED STATES ................................. 83
A. The Common Law Background ......................................................... 83
B. The 1863 Statute ................................................................................. 86
C. Postwar Legislation and Constitutional Challenges ........................... 88
D. The 1874 Act ...................................................................................... 92
E. Boyd .................................................................................................... 95
F. Boyd and Lochner ............................................................................... 97
G. Boyd as Doctrine: Two Apparent Anomalies ..................................... 99
1. The Mere-Evidence Rule ................................................................ 99
2. Search Incident to Arrest .............................................................. 100
V. SUMMING UP: HISTORY AS OPPORTUNITY ........................................... 102
A. The Case Against Equating “Papers” and “Effects” ......................... 102
B. The Pooling Problem and the All-or-Nothing Dilemma ................... 106
C. Beyond All or Nothing ..................................................................... 107
Why does the Fourth Amendment distinctly refer to “papers” prior to
“effects”? Why should we care?
The inquiry is interesting for the usual reasons legal history is
interesting—those who look may find a compelling story that provides the
surest foundation for understanding modern doctrine. In this case, however,
there is an additional and urgent reason for caring about history. Modern
doctrine is in deep trouble and needs all the help it can get.
For more than a century, the Supreme Court adhered to the doctrine of
Boyd v. United States, granting private papers an extraordinary exemption
from seizure, even under warrant.
1
Then, during the last quarter of the
twentieth century, the Supreme Court began effectively to equate “papers”
and “effects.”
2
Another line of modern cases established “bright-line
1
See infra text accompanying notes 257–266 (discussing Boyd v. United States, 116
U.S. 616 (1886)).
2
United States v. Doe, 465 U.S. 605, 611–12 (1984) (holding that compelled production
of preexisting documents did not violate Fifth Amendment privilege, excepting testimonial
character of the act of production); Zurcher v. Stanford Daily, 436 U.S. 547, 560 (1978)
(holding that search of newspaper office for photographs, under warrant, did not violate
Fourth Amendment); Andresen v. Maryland, 427 U.S. 463, 477 (1976) (holding that search
of law office, and seizure of documents incriminating suspect in fraud, under warrant, did
not violate the Fourth Amendment); Fisher v. United States, 425 U.S. 391, 401 (1976)
(holding that compelled production by accountant of client’s documents entrusted to
accountants did not violate Fifth Amendment).
2013] DEAREST PROPERTY 51
rules”
3
that gave the same constitutional treatment to all “effects.”
4
Twenty-first century technology makes these doctrines problematic.
Portable devices like cell phones and flash drives are “effects” subject to
search and seizure like briefcases and backpacks. Given the enormous
quantity and sensitive content of the information digital devices hold,
equating them with other “effects” has troubled courts and commentators.
5
In computer search cases, the police may have probable cause and be
able to describe particularly what they are seeking. But the disturbing
feature is the volume of innocent and intimate information that must be
exposed before the criminal material is discovered. This pooling of small
quantities of criminal evidence with large quantities of innocent and
intimate information is not new. It appeared in a great controversy over
general warrants, libels, and seizure of papers that erupted in England in the
1760s.
This Article argues that the history of seizing “papers” explains why
the Amendment uses the term and offers the opportunity to ground special
Fourth Amendment rules for digital evidence. For originalist judges the
pertinence of history is obvious. History is important, however, for any
theory of constitutional interpretation more formal than brazen realism.
6
In
this instance, history might help to reconcile Fourth Amendment doctrine
3
For application of the usual arguments about rules versus standards to the Fourth
Amendment context, see, e.g., Albert W. Alschuler, Bright Line Fever and the Fourth
Amendment, 45 U. PITT. L. REV. 227 (1984) (arguing that Fourth Amendment cases are so
various that rules are arbitrary and defending particularized rulings in the style of parables);
Wayne R. LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures”: The
Robinson Dilemma, 1974 SUP. CT. REV. 127 (arguing for bright-line rules to govern
recurring patterns of police behavior such as searches incident to arrest).
4
See California v. Acevedo, 500 U.S. 565, 576 (1991) (holding that warrantless search
of a container in the trunk of a vehicle where police officers had probable cause to believe
that only the container, not the rest of the car, contained contraband, did not violate the
Fourth Amendment); United States v. Ross, 456 U.S. 798, 820–21, 825 (1982) (holding that
the vehicle exception to the warrant requirement permits a warrantless search of any
container in the vehicle that could contain the suspected evidence or contraband); New York
v. Belton, 453 U.S. 454, 460 (1981) (holding that search-incident-to-arrest power permits a
warrantless search of the entire passenger compartment, including containers, of vehicle
occupied by arrested suspect); Gustafson v. Florida, 414 U.S. 260, 266 (1973) (holding that
search-incident power extends to all effects on the person of an arrested suspect, including
containers); United States v. Robinson, 414 U.S. 218, 235 (1973) (same).
5
See infra Part I.
6
Even for pragmatists and common law constitutionalists, text and history matter—a lot.
Cf. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 235 (1962) (observing that
text, history, and precedent “are not irrelevant materials, not ever. They are empirical aids,
being deposits of experience; they are sources of inspiration, instigators of reflection,
producers of mood. In short, they are the setting for judgment and they condition it, but they
are not its wellspring”).
52 DONALD A. DRIPPS [Vol. 103
with the widespread sense that some effects are categorically more private
than others.
The Fourth Amendment refers to “papers” because the Founders
understood the seizure of papers to be an outrageous abuse distinct from
general warrants. The English courts and resolutions of the House of
Commons condemned both abuses distinctly. The controversy was closely
followed in America, where colonial Whigs sympathized with, and even
idolized, John Wilkes, who successfully sued for damages for the seizure of
his papers. America inherited the common law ban on searches for papers,
adopted constitutional provisions that mentioned papers distinctly, and
refused to modify the common law ban by statute until the Civil War. The
one Founding-era attempt to authorize seizing papers by statute was
condemned as contrary to common law and natural right and never passed
into law. Although Congress authorized seizing papers to enforce the
revenue laws during the Civil War, it took until the 1880s for a challenge to
reach the Supreme Court. That challenge was Boyd, which remained the
law for another ninety years.
Boyd rightly held that “papers” deserve more constitutional protection
than “effects.” Special protection does not, however, ineluctably mean
absolute immunity. The seizures that aroused outrage in the 1760s were
indiscriminate, expropriating, unregulated, and inquisitorial. A regulated,
discriminate, and nonrivalrous process for inspecting documents is
different.
Indeed, the prohibition on seizing papers was never absolute. Stolen
and contraband papers could be seized under warrant, and perhaps papers of
only evidentiary value could be seized incident to arrest. Moreover, if the
Fourth Amendment, as Story said, is “little more than the affirmance of a
great constitutional doctrine of the common law,”
7
the Amendment
incorporates by reference “a great constitutional doctrine” that was dynamic
on its own terms, subject to judicial evolution and statutory modification.
8
The supposed choice between no special protection for private papers and
complete immunity for private papers is a false dilemma.
This Article takes no position on the precise special doctrines that
should be formulated to prevent promiscuous searches of digitized
7
3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1895,
at 748 (Boston, Hilliard, Gray & Co. 1833).
8
See Donald A. Dripps, Responding to the Challenges of Contextual Change and Legal
Dynamism in Interpreting the Fourth Amendment, 81 MISS. L.J. 1085, 1121 (2012) (arguing
that the Supreme Court should overrule pre-Founding English precedents incorporated by
reference into the Fourth Amendment according to the same criteria that govern overruling
post-ratification Fourth Amendment precedents).