Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 Virginia Law Review Va. L. Rev. (1985), https://digitalcommons.law.uw.edu/faculty-articles/305
Virginia Law Review
private papers, search and seizuer
This article argues that the Supreme Court's original view of the history and meaning of the fourth amendment was correct: seizures of papers were condemned in eighteenth-century England without respect to the validity of any underlying warrant, and the search and seizure clause thus embodies requirements independent of the warrant clause.
Part I discusses the eighteenth-century English decisions, including Entick, and concludes that the case law of that era had two separate branches. One branch forbade general warrants and led to the adoption of the warrant clause; the other, exemplified by Entick, prohibited the seizure of certain papers and lies behind the search and seizure clause. Part II, relying on debates in Parliament and on a series of widely circulated pamphlets, describes the public controversy in the 1760's over the English government's search and seizure practices. It shows that the use of general warrants and the seizure of private papers were attacked on distinct grounds in the public arena as well as in the courts.
Part III suggests several basic principles of fourth amendment jurisprudence that this history appears to require. First, the search and seizure clause forbids the inspection of innocent private papers in the course of a search for inculpatory documents that by themselves are unprotected by the fourth amendment. Second, an assessment under the search and seizure clause of the reasonableness of a seizure of private papers should take into account the problem of compulsory self-incrimination. Third, the fourth amendment strictly limits court-compelled production of documents by the defendant in a suit or prosecution for libel or other speech-related activity.