Our constitution provides that a warrant must be obtained before search or seizure except in a limited set of situations that are not relevant to our present
concerns. This is the national constitution, but many states have similar provisions in their constitutions. My discussion will be limited to the national document.
The original constitution had a massive loophole in the prohibition of non-warrant search and seizure. Customs officers may search anyone in the general vicinity of the docks. Since the federal government had little jurisdiction in the interior, and mainly lived on customs duties, it seems unlikely that the search and seizure provision seriously limited the powers of the government.
In any event, tax collection has always been given special privileges in the courts. When I was in law school we read a case in which the judge said that taxes were necessary to support the government, and in particular pay the costs of courts. Thus strict protection of the taxpayer was not necessary. Anyone who has dealt with the Internal Revenue Service or the local real estate assessment procedure will be able to testify to that from experience.
Until a little after the turn of the 20th century, the federal restriction had little effect. If the federal officer undertook a search far from the docks without a warrant he was guilty of a minor crime, but there was no other consequence. It was easy to get warrants so the problem rarely arose. The Supreme Court, however, changed that by ruling that the “fruit of the poisoned tree” i.e. evidence obtained improperly, could not be used in court. Since this applied only to federal cases, and they were rare, the matter was unimportant.
In the days just before I was drafted and sent to Europe, my teacher of criminal procedure, an old fashioned liberal, expressed discontent with the ruling. He said that if a policeman conducted an illegal search, then the prosecuting attorney had two potential customers, the criminal and the policeman, but the criminal “should not profit from the constable error”. This was my opinion, and I think very widely held.
The argument on the other side was that the prosecuting attorney would probably not prosecute the policeman, and hence illegal searches would not be deterred. There was no empirical evidence on the point, but state courts dealt with most crimes, so the matter was of little importance until the late 50s and the Mapp case. In this case, the Supreme Court held that the “fruit of the poisoned tree” precedent applied also to state courts. Some of the states had, of course, been applying similar doctrine on the basis of their own constitutions, but this decision made it nationwide.
It is interesting that at about the same time that the courts began imposing strict rules on searching people suspected of crimes, searches of all sorts of completely innocent persons, suspected of no crime or misdemeanor suddenly became routine. This originally came from a burst of aircraft hijackings, but there were also some cases of bombs on aircraft. Originally, the searches were manual, and would have led to immediate dismissal of the charges if they had been used on people suspected of other crimes without “reasonable cause”.
The use of electronic procedures rather than physical search has now become common, but physical searches are still used in some cases after the electronic search. These special searches are commoner for baggage than the person, but I have had the attendants reach into my pockets when the electronic system detects metal that is suspicious. It is interesting that these searches, particularly, in the early days when the search was manual, sometimes turned up drugs. The ACLU objected to this although they did not object to the original search. In any event, in spite of the constitutional ruling, almost everyone has been searched, first electronically and then manually if the electronic search shows metal. In the early days it was all manual.
The practice has spread. Most courts follow the same procedure for everyone who enters. Many stores have electronic search apparatus on their doors, mainly to detect shoplifters. The student restaurant and bookstore in my university in my university are equipped to electronically search everyone who goes in or out, of the library. I should emphasize that I do not object to these searches, but I do object to the searches of genuine criminals being restricted. Note that the only cases in which searches of people suspected of crimes get to court are those in which they police find evidence in their search, and it is then thrown out. I suppose that a person searched without a warrant or the circumstances in which the courts permit a police search, and in which no evidence was found could sue the police. Such cases are rare to non-existent, and I suspect that juries would be sympathetic to the police if one were brought.
Long ago, in my book “The Logic of the Law”, I suggested that the police be permitted to search freely, but be compelled to pay a fee to the person searched equivalent to the inconvenience imposed. This would solve the whole problem. The police in order to conserve funds would only search with good reason, and the people searched would either be convicted of a crime, or reimbursed. No one but criminals would be hurt. This simple Pareto optimal solution, would I a sure, be held be held unconstitutional. To quote Mr. Pickwick, “The law is a fool and an ass.”