Searches & the Misunderstood History of Suspicion & Probable Cause: Part One


This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake to presume that the law was necessarily implemented in accordance with this elite guidance. This is because justices of the peace, the non-elite judges who actually issued search warrants, had reason to believe that judicial sentryship of probable cause was often optional. Evidence supporting this conclusion can be found in treatises, as well as manuals for justices of the peace, legal forms, civil search statutes, and case law, as well as the extended development of probable cause sentryship jurisprudence, which continued well past 1950. American justice of the peace manuals and legal forms play a particularly important role in this story, as it is likely they had a profound influence on search warrant procedure given the laxity in legal education and judicial training, as well as the limitations on legal research, during the Framers’ era.

This article challenges our current understanding of the Fourth Amendment, including the relationship between its Reasonableness and Warrant clauses, raises questions about originalism, and contributes to our understanding of the sources and methods used by judges during the Framers’ era, as well as by historians today. These topics will continue to be explored in the second part of this series, which will focus upon statutory law from the Framers’ era.


Administrative Law | Civil Rights and Discrimination | Constitutional Law | Courts | Criminal Law | Criminal Procedure | Judges | Jurisprudence | Law | Legal History | Legal Profession | Litigation

Date of this Version

September 2006