Justice Stewart on what makes a search warrant overbroad

Back to the future? Some day, the U.S. Supreme Court may publish words like the following in response to the persecution of the FLDS by the State of Texas:

[On April 3, 2008], several Texas law-enforcement officers presented themselves at the petitioner’s [Eldorado] home for the purpose of searching it under authority of a warrant issued by a local magistrate. By the time they had finished, [several days] later, they had seized some 2,000 of the petitioner’s books, pamphlets, and papers. The question presented by this case is whether the search and seizure were constitutionally valid. . .

While this may sound familiar to followers of the Texas CPS - FLDS saga, it’s actually lifted straight out of a 1965 U.S. Supreme Court case, Stanford v. Texas. Only the dates and the location — the original was a few miles southeast of Eldorado, in San Antonio — have been changed.

For busy readers who want a taste of the Supreme Court’s stinging rejection of a Texas search warrant, here are a few choice excerpts from the Stanford opinion written by Justice Potter Stewart, pictured above:

The petitioner filed a motion with the magistrate who had issued the warrant, asking him to annul the warrant and order the return of all the property which had been seized under it. The motion asserted several federal constitutional claims. After a hearing the motion was denied without opinion. This order of denial was, as the parties agree, final and not appealable or otherwise reviewable under Texas law. See Ex parte Wolfson, 127 Tex. Cr. R. 277, 75 S. W. 2d 440. Accordingly, we granted certiorari, 377 U.S. 989 . See Thompson v. City of Louisville, 362 U.S. 199, 202 -203.

The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid - a general warrant. Therefore, even accepting the premise that some or even all of the substantive provisions of Articles 6889-3 and 6889-3A of the Revised Civil Statutes of Texas are constitutional and have not been pre-empted by federal law, even accepting the premise that the warrant sufficiently specified the offense believed to have been committed and was issued upon probable cause, the magistrate’s order denying the motion to annul the warrant and return the property must nonetheless be set aside.

It is now settled that the fundamental protections of the Fourth Amendment are guaranteed by the Fourteenth Amendment against invasion by the States. Wolf v. Colorado, 338 U.S. 25, 27 ; Mapp v. Ohio, 367 U.S. 643 ; Ker v. California, 374 U.S. 23 . The Fourth Amendment provides that “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.” (Emphasis supplied.)

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever “be secure in their persons, houses, papers, and effects” from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.” The historic occasion of that denunciation, in 1761 at Boston, has been characterized as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,’ said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary [379 U.S. 476, 482] claims of Great Britain. Then and there the child Independence was born.’” Boyd v. United States, 116 U.S. 616, 625. . .

The full opinion is available for free at Findlaw. It’s a great civics and history lesson. Every high school student in America should read it, especially in light of how dramatically the events of September 11, 2001, have curtailed privacy rights in the United States.