Sunday reading

Donald A. Dripps, Eavesdropping, the Fourth Amendment and the Common Law (of Eavesdropping). Univ. San Diego Law, No. 23-043, Legal Studies Research Paper (2023).

This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?

Supreme Court Justices have debated these issues for nearly a century. Olmstead v. United States Court held that wiretapping “did not amount to a search or seizure within the meaning of the Fourth Amendment.” Chief Justice Taft argued that the “well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man's house, his person, his papers and his effects, and to prevent their seizure against his will.” General warrants immunized government agents from liability for trespass or false arrest, and the anti-federalists feared that Congress might resort to them unless restrained by a Bill of Rights.

​On the other hand, jurists and scholars have long argued that founding-era general searches exemplify, but do not exhaust, the practices the amendment forbids. A home can be searched without physical invasion, and intangible "things" like conversations can be seized.