ARBITRARY SEARCHES AND SEIZURES and before a judicial officer was insisted upon by the common law and by the con stitutions, both state and federal. Com plaints were required to be sworn to and filed, and it was only after an examination of these that the warrants could issue.1 The constitutions, however, did not require the issuance of search warrants in all cases. They rather guaranteed the continuance of the rights which were already existing or which were presumed to exist, the right of the people to be secure in their persons, houses, papers, and effects against unreason able searches and seizures, and the right to insist that in those cases where search warrants were required by the common law the same should not be issued except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The law as gener ally understood was, that an entry could only be made by a judicial officer;2 that in all cases a warrant was necessary,3 except where the purpose of the entry was for the arrest of a felon where the crime had been committed in the presence of the officer, or where an affray or breach of the peace was going on within the closed doors. In no case could an entry be made for the pur pose of arresting one thought guilty of a misdemeanor without a warrant,5 nor even with a warrant (and even where the commis sion of a felony was suspected) for the pur pose of obtaining evidence or information.6 In no case could a warrant be issued except upon probable cause supported by oath or 1 See opinion of Lord Camden in Entick v. Carrington, 19 Howell's State Trials, 1029; 4th Amend, to U. S. Const; 2 Hale, P. C. 142. 1 2 Hale, P. C. 150; Cooley, Const. Lim., 7th. ed., 430' Black's Const. Law, p. 501.
- Black's Const. Law, p. 501.
- McLennon v. Richardson, 15 Gray (Mass-.)
74.
- Cooley, Const. Lim., yth ed., 431.
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affirmation.1 The probable cause had to be shown by affidavit based upon knowl edge as to the facts therein contained. The uncertainty of probability was a conclusion to be deduced from the facts, rather than an uncertainty lying in the facts themselves.2 The warrant could be not issued for the purpose of obtaining evidence of an intended crime, but only after lawful evidence of an offense actually committed.3 In every case the officer was required to follow the strict letter of his wan-ant, and the burden was upon him to justify his acts if he departed from it.4 Protection from the arbitrary acts of administrative officers, and for the reasonable privacy of the citizen, were the main things sought for. It is even doubted by the earlier writers whether a search warrant could be issued in the night-time.8 It is true that warrants could be issued for the seizure of contraband articles, or to abate known nuisances.6 They were author ized, however, only where the existence of contraband articles were known; where the articles bore the relationship to the govern ment that stolen goods did to the indi vidual; where, as nuisances, they were, legally speaking, not property at all, or where their introduction, without the pay ment of the duties prescribed, had forfeited them to the Crown, and the Crown in seizing them was merely seizing its own. Search warrants were not authorized for the pur pose of prying around and of ascertaining whether contraband articles were concealed or not.7 1 Amend. U. S. Const. Art. IV; Entick v. Carrington, 19 How. St. Mich., 1029. 2 Comm. v. Lottery Tickets, 5 Cush. 369.
- Cooley, Const. Lim. 7th ed., 431.
- Cooley, Const. Lim. 7th ed. 434.
- 2 Hale, P. C. 150. But see Comm. v. Hinds,
145 Mass. 182, 13 N. E. 397; State v. Brennan's Liquors, 25 Conn. 278.
- Sandford v. Nichols, 13 Mass. 286; Hender
son's Distilled Spirits, 14 Wall. 447 Tiedeman St. and Fed. Con. of Persons and Prop. § 158.
