The Historical Record and the 4th Amendment

     So far, my favorite case has been Boyd v US (1886).  The case is about customs.  Someone allegedly smuggled 35 cases of plate glass into the country.  During the investigation, the government demanded that the importer produce documents related to an earlier importation of 29 cases of plate glass.  Was the request legal?  The request was based on an act passed in 1874, which amended an act of 1867, which amended a Civil War act (1863) entitled "An act to prevent and punish frauds upon the revenue."  Was that act Constitutional?  Giving the decision of the Court, Justice Bradley has some great quotes:

In order to ascertain the nature of the proceedings intended by the fourth amendment to the constitution under the terms 'unreasonable searches and seizures,' it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;' since they placed 'the liberty of every man in the hands of every petty officer.'

And then quoting Lord Camden

Such is the power, and therefore one would naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant. If it is law, it will be found in our books; if it is not to be found there it is not law.

The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law are various. Distresses, executions, forfeitures, taxes, etc., are all of this description, wherein every man by common consent gives up that right for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing, which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show, by way of justification, that some positive law has justified or excused him.

And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.

     Here are some links on the matter

• Electronic Surveillance in US law
• General Hayden's remarks (see question from Landay)
• The Federation of American Scientists page on FISA.
• Andresen v Maryland (1976)
• Coolidge v New Hampshire (1971)
• Stanford v Texas (1964)
• US v Leon (1984)
• Marron v US (1927)
• Skinner v Railway Executives (1989)
• Michigan Dept of State Police v Sitz (1990)
• Agnello v US (1925)
• Carroll v US (1925)
• Weeks v US (1914)
• Boyd v US (1886)