Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 158.: Search warrants—Sanitary inspection.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 158.: Search warrants—Sanitary inspection.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 158.

Search warrants—Sanitary inspection.—

The security of the privacy of one’s dwelling, not only against private individuals, but also as against the officers of the law, or the frequent and unrestrained interference with this privacy by the common police officers, more than anything else distinguishes a free country, one governed by officials under constitutional limitations, from a country, in which political absolutism is checked only by the limitations of nature. The dwelling of the continental European, particularly the Frenchman, must open at the command of the police officer, whenever a crime has been committed, and suspicion rests upon him. His closets and other private apartments are broken open, his private papers ruthlessly scattered about or taken away, to be subjected to the inspection of some other official without any specific description of the person or things which are to be apprehended; and without any proof beyond a mere suspicion, that the house contains the persons or thing sought for. But under a constitutional government, of which the liberty of the citizen is the corner stone, the privacy of one’s dwelling is rarely ever invaded, and then only in extreme cases of public necessity, and under such limitations as will serve to protect the citizen from any unusual disturbance of his home life. The common law maxim, “Every man’s house is his castle” is guaranteed in this country by an express constitutional provision, which declares that “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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”1 Except in accordance with, and under the restrictions of this, constitutional provision, one may close his doors against all intruders, and resist their entrance by the use of all the force that may be necessary for the protection of the property, even to the extent of taking the life of the trespasser.2 The constitutional guaranties of the security of one’s dwelling enable the Englishman and American to feel that there is a reality in these beautiful words of Lord Chatham, which have been so often quoted: “The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may play through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”

But the necessities of organized society do require that at times the doors of the private dwellings shall be opened for the admission of the officers of the law, and principally as an aid to the prosecution of crimes. But, before that is permissible, a search warrant must be obtained from a court of competent jurisdiction, which is authorized by law to grant it; it must be issued to an officer of the law, and never to the complainant; it can only be granted upon a showing of probable cause for believing that a proper case has arisen for the exercise of this police power; and lastly, the warrant must contain a particular description of the premises to be searched, and the person or things to be taken into custody.1 A failure to comply with any one of these requirements will render the warrant defective, and the entrance into the dwelling under it an unlawful invasion. In other countries search warrants are issued upon the barest suspicion that the house contains a criminal or things that are for some reason subject to seizure, and often, too, for the sole purpose of procuring evidence wherewith to convict the criminal. The only fact that is required to be established by prima facie evidence is that a crime has been committed by some one, known or unknown, it matters not which, and it is in the judgment of the police officer advisable that a particular house shall be searched in the interest of justice.

Under no circumstances can a search warrant be issued in this country for the sole purpose of securing the necessary evidence for the State. Whenever the police officer shows probable cause for believing that stolen goods are secreted in the house of the supposed thief or some other person, and in all other cases where the house contains the goods, the possession and use of which constituted the crime, that house may be searched, and so far, and in these cases, the State may, with the aid of a search warrant, procure evidence of the guilt of the accused. But ordinarily this is not permitted. A man’s letters and papers and other effects cannot be searched in the aid of a criminal prosecution against him. Not only is this prohibited by the spirit of the constitutional provision in reference to the issue of search warrants, but likewise by another provision1 which provides that no one “shall be compelled in any criminal case to be a witness against himself.”2 But, as already stated, where the crime or misdemeanor consists of the possession or use of things, which are prohibited by the law, either because of their injurious effect upon the public, or because the goods belong to another, or when there is an unlawful detention of persons, search warrants may be issued for their recovery, when satisfactory evidence of their being stored in a particular dwelling is presented to the judicial officer who issues the warrant. Thus search warrants have been granted to search for stolen goods, for counterfeit money, forged bills and notes, for goods held in violation of the revenue laws of the United States,3 in violation of the laws against lotteries and gambling in general,4 for obscene publications and intoxicating liquors kept in violation of the liquor laws,5 and for the recovery of public books and records which have been taken from the proper custody. Search warrants have also been issued for the purpose of securing the release of females supposed to be forcibly concealed in houses of ill-fame; for the recovery of minor children, who have been enticed or forcibly taken away from their parents or guardian, and probably in any case of probably unlawful detention of a human being.1 Search warrants may also be granted in aid of those sanitary and other police regulations, which are designed to prevent the storage of gunpowder or other explosive or inflammable materials in such large quantities that it will endanger the public safety, or to check or regulate the accumulation of offal or garbage to the injury of the public health. It would also be a reasonable regulation to compel the search of the house or premises for the discovery of persons suffering from some dangerously infective disease, and whom the law required to be cared for in the public lazaretto; or to see that, after the recovery of such a person from an infectious disease, the house is properly disinfected. In consideration of the reasonableness of these sanitary regulations, it is supposed that in the enforcement of them, one’s house may be searched in opposition to his wishes and by force, without a search warrant.2 But it is probable that in a clear case of the resistance of the entrance of the health officer, a search warrant would be required. These regulations are however so reasonable that it is rarely, if ever, necessary for the officer to do more than to show his general authority.

The search warrant cannot be issued in aid of civil process, but one may be ejected from his dwelling in pursuance of a decree of ejectment without a formal search warrant.3 As a general proposition an officer may go to serve a process wherever the subject-matter of the process may be. But, except for the purpose of making an arrest or seizure in criminal cases, and in the few cases in which search warrants are issued in the enforcement of sanitary and other police regulations, the service of process is subject to this limitation, that the officer cannot break open the outer door. But if the outer door is found open, the officer may break open any inner door, if that be necessarry for the service of the process.1

Another important requisite is that the warrant must specify and describe particularly the place to be searched, and the person or thing sought after. The description of the house must be sufficiently particular, in order that it may be distinguished from others. A description that is equally applicable to two or more buildings is defective, and an erroneous or defective description will vitiate the warrant, and make the entrance under it an unlawful trespass.2 If a warrant is issued to search a dwelling-house, the adjoining barn cannot under this warrant be forcibly entered.3 The same regulations apply to the persons or things to be taken into custody. They must be particularly described, in order that the warrant may be free from objection. The warrant for the arrest of a person under a fictitious name, without any further description, whereby he may be identified, would be defective,1 and so likewise if the things to be seized are described generally as “goods, wares and merchandise.”2 It is considered highly objectionable, on principle, for the warrant to be used in the night time; and while there is no constitutional provision which prohibits a search under a warrant in the night, statutes invariably provide that the search shall be made in the day, except in a few urgent cases of felony.3

It is also necessary for the warrant to direct that the person or things seized shall, if found, be taken to the magistrate, who issued the warrant, in order that there may be a judicial examination of the facts, and a disposition of the person or things according to law. A search warrant is fatally defective, which does not provide for this subsequent judicial examination, but leaves the disposition of the person or things to the judgment of the ministerial officer.4

When the warrant complies with all the requirements of the law, the officer is protected from liability in damages for whatever force he may find it necessary to use in the execution of the warrant, even though the persons or things sought after should not be found.5 But he must keep strictly within the limits of his warrant, and should he enter dwellings, arrest persons, or seize things, not falling within the description contained in the warrant, he is liable in damages for the unwarranted trespass.1

[1]U. S. Const. Amend., art. 4. Similar provisions are to be found in each of the State constitutions.

[2]Bohannan v. Commonwealth, 8 Bush, 481 (8 Am. Rep. 474); Pond v. People, 8 Mich. 150.

[1]Bishop Crim. Procedure, §§ 240-246, 716-719; 2 Hale P. C. 142, 150; Archbold Cr. Law, 145, 147.

[1]U. S. Const. Amend. art. 5. The same provision is found to be in most, if not all, of the State constitutions.

[2]“To enter a man’s house by virtue of a warrant, in order to procure evidence, is worse than the Spanish Inquisition,—a law under which no Englishman would wish to live an hour.” Lord Camden in Entinck v. Carrington, 19 State Trials, 1029; s. c. 2 Wils. 275; Hackle v. Money, 2 Wils. 205; Leach v. Money, 19 State Trials, 1001; s. c. 3 Burr. 1692; s. c. 1 W. Bl. 555; Wilkes v. Wood, 19 State Trials, 1153; Archbold Cr. Law, 141; Cooley Const. Lim. 371, 372.

[3]Sandford v. Nichols, 13 Mass. 286 (7 Am. Dec. 151); Sallee v. Smith, 11 Johns. 500. See Locke v. United States, 7 Cranch, 339; The Luminary, 8 Wheat. 401; Henderson’s Distilled Spirits, 14 Wall. 44; Gindrat v. People, 138 Ill. 103; Glennon v. Britton, 155 Ill. 232.

[4]Commonwealth v. Dana, 2 Met. 329; Day v. State, 7 Gill, 321; Lowery v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420).

[5]State v. Brennan’s Liquors, 25 Conn. 278; Hibbard v. People, 4 Mich. 125; Fisher v. McGirr, 1 Gray, 1; Gray v. Kimball, 42 Me. 299; Allen v. Colby, 47 N. H. 445.

[1]Cooley Const. Lim. 372.

[2]Cooley’s Principles of Const. Law, p. 211.

[3]“Search warrants were never recognized by the common law as processes which might be availed of by individuals in the course of civil proceedings, or for the maintenance of any mere private right; but their use was confined to the case of public prosecutions instituted and pursued for the suppression of crime, and the detection and punishment of criminals. Even in those cases, if we may rely on the authority of Lord Coke, their legality was formerly doubted; and Lord Camden said they crept into the law by imperceptible practice. But their legality has long been considered to be established on the ground of public necessity; because without them felons and other malefactors would escape detection.” Merrick, J., in Robinson v. Richardson, 13 Gray, 456.

[1]Semayne’s Case, 5 Co. 91; Smith Lead. Cas. 213; Hsley v. Nichols, 12 Pick. 270; Swain v. Mizner, 8 Gray, 182; Oystead v. Shed, 13 Mass. 520; People v. Hubbard, 24 Wend. 369; Snydecker v. Brosse, 51 Ill. 357; Bailey v. Wright, 38 Mich. 96.

[2]Sandford v. Nichols, 13 Mass. 286 (7 Am. Dec. 151); Allen v. Staples, 6 Gray, 491; McGlinchy v. Harrows, 41 Me. 74; Humes v. Tabor, 1 R. I. 464; Ashley v. Peterson, 25 Wis. 621; Bell v. Rice, 2 J. J. Marsh. 44 (9 Am. Dec. 122).

[3]Jones v. Fletcher, 41 Me. 254; Dowling v. Porter, 8 Gray, 539; Bishop Cr. Procedure, §§ 716, 719. And when a building is to be searched, it is usually necessary to give the name of the owner or occupant. Stone v. Dana, 5 Met. 98.

[1]Commonwealth v. Crotty, 10 Allen, 403.

[2]Sandford v. Nichols, 13 Mass. 286 (7 Am. Dec. 151).

[3]2 Hale P. C. 150; Cooley Const. Lim. 370.

[4]2 Hale P. C. 150; Fisher v. McGirr, 1 Gray, 1; Greene v. Briggs, 1 Curt. 311; State v. Snow, 3 R. I. 64; Bell v. Clapp, 10 Johns. 263 (6 Am. Dec. 339); Hibbard v. People, 4 Mich. 126; Matter of Morton, 10 Mich. 208; Sullivan v. Oneida, 61 Ill. 242; Lowry v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420); Hey Sing Jeck v. Anderson, 57 Cal. 251.

[5]2 Hale P. C. 151; Barnard v. Bartlett, 10 Cush. 501; Cooley Const. Lim. 374.

[1]Crozier v. Cudney, 6 B. & C. 232; 9 D. & R. 224; State v. Brennan’s Liquors, 25 Conn. 278.