by Matt Barr

Are warrants 'surplusage' under the Fourth Amendment?

Mike at Crime and Federalism notes last year's Groh v. Ramirez case in light of the Court's agreeing to review the constitutionality of "anticipatory warrants."

Last Term, in Groh v. Ramirez, seven Justices (Rehnquist, Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer) expressed the view that a search warrant that did not comply with the Fourth Amendment's textual requirements was invalid under the Fourth Amendment. In Groh, a federal agent forgot to attach the appendix to a search warrant: the appendix contained the persons and things to be searched and seized. Thus, the warrant did not "particularly describ[e] the place to be searched, and the persons or things to be seized."

Since anticipatory warrants don't comply with the amendment's text, Mike argues, Grubbs has five or six votes. [UPDATE: It didn't occur to me till after I posted that Mike counts five or six votes for Grubbs not including Scalia and Thomas, whom he thinks are no sure things, whereas Prof. Kerr thinks those two are in the bag. See second link above.]

The more interesting thing to me is Mike's reproduction of this item from Mr. Justice Thomas' dissent in Groh:

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While "it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness," California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring in judgment), the text of the Fourth Amendment certainly does not mandate this result.

This contrasts, I think, with Thomas' dissent in Kelo, which read in part:

The Fifth Amendment provides:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation." (Emphasis added.)...

Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use." Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power--for public or private uses--then it would be surplusage....

The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever....

Tellingly, the phrase "public use" contrasts with the very different phrase "general Welfare" used elsewhere in the Constitution....

The Constitution's common-law background reinforces this understanding....

[A] taking is permissible under the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public.

Internal citations omitted. This fleet footwork is of course in response to the fact that the Fifth Amendment doesn't authorize or prohibit takings for private use at all. In Groh, Thomas spends a couple sentences explaining that the Fourth Amendment doesn't require a warrant by its terms; in Kelo, he spent pages explaining that the Fifth prohibits takings for private use (or the murkier "public purpose").

As it happens, the two questions differ enough that this can be a legitimate, principled approach both times. There is nothing internally inconsistent about warrants in the Fourth Amendment, the way Thomas argues there would be an internal inconsistency, both in the amendment itself and with the rest of the constitution, if the Fifth Amendment isn't read to limit takins to public use. But I thought it was interesting enough to note.

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