Vol. 14 No. 8 (August 2004), pp.673-675

THE INTRUDERS: UNREASONABLE SEARCHES AND SEIZURES FROM KING JOHN TO JOHN ASHCROFT, by Samuel Dash. Piscataway, New Jersey: Rutgers University Presses, 2004. 160pp. Hardcover. $22.95. ISBN: 0-8135-3409-7.

Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: polrhh@langate.gsu.edu.

The late Samuel Dash, who rose to fame as chief counsel of the U.S. Senate Watergate committee, has written a lively, timely, and eminently accessible book on search and seizure law. The reader should make no mistake about the aim of the author. The book is not, nor intended to be, a neutral passionless tome about search and seizure law. Dash has a point of view, and articulately defends it. It is, however, no polemic, but instead, more of a reasoned lawyer’s brief that uses history, facts and case law to support his argument. Written for more than just a scholarly audience, Dash surveys almost 800 years of history to argue how the law against unreasonable searches and seizures is deeply rooted in the privacy traditions and conscience of the American people. He also argues that this extremely important right has been, and continues to be, subject to erosion, and grave assault, by government through the centuries.

After a brief prologue that introduces his ideas and concerns through the events of both Watergate and 9/11, Dash uses the first few chapters to provide a synopsis of the history of search and seizure law. He progresses in rapid fashion from Magna Carta, to early American law and the enactment of the 4th Amendment, to the introduction of the exclusionary rule. The subsequent chapters trace the development, expansion and eventual decline of the exclusionary rule, and in the author’s view, the decline of the protections of the 4th Amendment. Dash ends the book by relating search and seizure law to post 9/11 events and argues for his vision of the appropriate balance between security and liberty in the age of terrorism. 

In the first chapter, aptly titled “The Legend of Magna Carta,” Dash reviews the background of Magna Carta and its subsequent interpretation by later English and American legal scholars to show that the protections offered by King John in the document are far less than imagined by later generations. However, this legend became transformed into a main source of liberty, particularly the notion that there is a privacy right that protects property from unwarranted intrusion by [*674] the government. Chapter Two continues the same theme with a review of the case of John Wilkes, the first individual to challenge the authority of the British crown to issue general, unspecified warrants. Wilkes successfully sued for civil damages for illegal entry, and the companion case of ENTICK v. CARRINGTON led to the famous statement by William Pitt that a “man’s home is his castle.” However, as Dash points out, the ruling did not bar the issuance of general, as opposed to specific, search warrants when issued by the King, and in fact, Wilkes was later convicted in a criminal proceeding by the use of this same illegally seized evidence.

In the next chapter, Dash goes on to discuss how outrage at the use of these general warrants, or “writs of assistance,” as they were termed in the American colonies, helped, in John Adam’s view, to spark the American Revolution. With the anger at these general warrants firmly in the mind of the framers, the adoption of the 4th Amendment provoked little controversy, including the prohibition of the 4th Amendment that extended beyond the condemnation of unreasonable searches and seizures to include a requirement for specificity in the issuance of search warrants.

Dash devotes the ensuing chapters first to the expansion of the protections of the 4th Amendment in American law, and then to the subsequent reining in of its safeguards. To demonstrate this development, Dash focuses on several key cases, interweaving the facts with analysis, current events, and subsequent reaction to, and consequences of, the rulings.  First Dash chronicles the rise of the protections of the 4th Amendment, including the first application of the exclusionary rule in WEEKS v. UNITED STATES in 1914, the upholding of wiretapping in OLMSTEAD v. UNITED STATES in 1928, and the ensuing negative reaction to the ruling, and the application of the exclusionary rule to the states in MAPP v. OHIO (1961).  Dash plunges into the debate over the exclusionary rule, first by reviewing both the dissent in MAPP and the consequent disapproving reaction to the rule, and then by presenting his argument as to the necessity of the rule. Ultimately, the exclusionary rule is an integral and necessary part of the right to privacy, which underlies the 4th Amendment. It is a fundamental aspect of liberty. This underlying principle, he argues, is one that later courts both ignored and misrepresented.

Dash traces the decline of the power of  4th Amendment prohibitions through the limits placed on the use of the exclusionary rule by the Burger and Rehnquist Courts. Dash reserves particular scorn for the introduction of such concepts as the “balancing test,” the stiffening of standing requirements, and the so called “good faith” exception in cases such as UNITED STATES v. CALANDRA, UNITED STATES v. JANIS, STONE v. POWELL, RAKAS v. ILLINOIS, and UNITED STATES v. LEON. To be sure, Dash argues his point of view; however, he does not ignore the arguments proposed for these concepts. For the author, it is a question of liberty, not just for the accused, but for all Americans.

The discussion of liberty, including the 4th Amendments’ prohibition against unreasonable searches and seizures, and the necessity of the enforcement mechanism of the exclusionary rule, is perhaps the strongest and most important section of the book. Dash draws a firm link between 4th Amendment rights and other rights guaranteed by the Bill of Rights, including the 1st Amendment. Noting the unpopularity of the exclusionary rule and its seeming protection of the guilty, Dash argues that the entire purpose of the Bill of Rights is the protection of the minority against the power of government. To Dash, the [*675] 4th Amendment, and the logical development of the exclusionary rule, is no less an important right than freedom of speech, or freedom of press, or the free exercise of religion. In the ongoing debate of security versus liberty, Dash firmly comes down on the side of liberty, arguing that restrictions throughout history, up to and including the Patriot Act, are almost always overbroad, endangering our liberty, yet adding little to our security.

While there is little that is new in the book, and little that public law, legal or judicial scholars, or their graduate students, will consider as a must read, the book is a welcome addition to the literature for the reasoned exposition of the development and importance of search and seizure law. It nicely will fit into an undergraduate Civil Liberties course or add to the general knowledge of any individual who wants to learn more about the importance of restraining the state from interfering with our persons and property. The exposition of the development of search and seizure law and the exclusionary rule is well done, and the synopses and analyses of cases will aid in the understanding both of students and the general public of this crucial aspect of American liberty.

CASE REFERENCES:

ENTICK v. CARRINGTON, 2 Wills. K.B. 274 (1765).

WEEKS v. UNITED STATES, 232 U.S. 383 (1914).

OLMSTEAD v. UNITED STATES, 277 U.S. 438 (1928).

MAPP V. OHIO, 367 U.S. 643 (1961).

UNITED STATES v. CALANDRA, 414 U.S. 338 (1974).

UNITED STATES v. JANIS, 428 U.S. 433 (1976).

STONE v. POWELL, 428 U.S. 465 (1976).

RAKAS v. ILLINOIS, 439 U.S. 128 (1978).

UNITED STATES v. LEON, 468 U.S. 897 (1984).

*****************************************************

Copyright 2004 by the author, Robert M. Howard.