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State v. Boyea12/1/2000
o Fourth Amendment jurisprudence. First, permitting a seizure based solely on an anonymous tip, without any effective requirement of reliability, abdicates the duty of the government to exercise self-restraint. It does away with the neutral review and evaluation of complaints on the criterion of "reasonableness" that is the cornerstone of the Fourth Amendment. Second, it is exactly this indiscriminate and unrestrained power of search and seizure that the Fourth Amendment was intended to curtail.
Throughout the centuries of Anglo-American debate over search and seizure practices, reliability of information has always been a central concern. In the history of England and colonial America, the requirement of reliability was enforced in dozens of ways. Englishmen and Americans alike expressed outrage over searches based on "bare suggestion" or "surmizes," on "deceitful tattle tale" or a "bare false assertion." See W. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 at 203, 933, 1119 (1990) (unpublished Ph.D. dissertation, Claremont Graduate School) (on file with University of Michigan Library). In the centuries preceding the adoption of the Fourth Amendment, both England and the colonies increasingly insisted that accusers provide sworn statements before the government could act on the accusation. See id. at 667, 686-87, 836-37, 1146, 1187, 1189, 1524. Further, both England and her colonies used tort law to deter false accusations; a fruitless search was a tort for which the informant could be sued. See id. at 541, 676, 699, 700, 1196, 1220, 1532. Another safeguard against false accusations was the rule that warrants were to be granted based only on suspicion judged sufficient by a magistrate or justice of the peace and not on frivolous or malicious accusations. See, e.g., id. at 836, 1188, 1189, 1198, 1524.
Americans were even more aggressive in requiring reliable information before permitting searches and seizures. When the newly-minted states drafted their constitutions, several states "not only disallowed general warrants but elevated specific warrants, probable cause, and the idea of unreasonable search and seizure to a position of higher law." Id. at 1234. They did this by explicitly focusing on the sufficiency of suspicion. See id. at 1245 (Massachusetts, Maryland, and Pennsylvania Constitutions). These constitutions enshrined the understanding that the Supreme Court's decisions embody: the truthfulness or reliability of an accusation is central to whether the government may reasonably act on it.
As search and seizure practice evolved in the American colonies, reliability was required for warrantless procedures as well as searches or seizures based on a warrant. A Massachusetts statute required warrantless customs searches to be based on written, sworn statements describing both where the taxable goods had been smuggled and where they had been taken. See id. at 1291. One commentator argued that only an informant "of substantial character," speaking from direct knowledge and not vindictively motivated could provide the basis for a search or seizure. Id. at 1524. Cuddihy observes that " any statutes operated on similar assumptions." Id.
Reliability and specificity were inherent prerequisites to a reasonable search or seizure, either with warrant or without warrant, by the time the Amendment was adopted. From his twenty years of research, Cuddihy concluded that " lthough the language of the amendment equates probable cause with warrants, it absorbed practices that required such cause for warrantless procedures." Id. at 1529. "The amendment's opposition to unreasonable intrusion, by warrant and without warrant, sprang from a popular opposition to the
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