Mark Pulliam recently repudiated an old outdated opinion of his in support of Lochner, as mentioned here at the Originalism Blog. Mark's essay reminded me that I need to follow in his footsteps, by confessing an old error in a footnote to a law review article of mine over a decade ago. It's an interesting issue, so why not blog about it?
Here's what I wrote a long time ago: "the Fourth Amendment does apply to searches without seizures, as well as to seizures without searches…." I now think the latter part is probably wrong. However, it remains part of standard doctrine; for example a 2015 treatise on constitutional law stated, "There can be searches without seizures and seizures without searches, and the Fourth Amendment imposes separate requirements for each."
Here's what the Fourth Amendment says (emphasis added):
The right of the people to be secure in their perons, 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.
Notice the conjunction "and" that I have put in bold, as distinguished from the word "or." The Amendment would apparently have imposed a general reasonableness requirement on seizures that do not involve searches, had the conjunction been "or" instead of "and." If police engage in a search that results in no seizure, then I agree with standard doctrine that the constitutional reasonableness requirement applies, because the object of the search is a seizure even if the latter does not end up happening. But what about a seizure that is not the result of any search — not even a search for another thing under the plain view doctrine?
Consider an example of a seizure without a search that would have been familiar in 1792 (when the Bill of Rights took effect): the arrest of a person in public without searching him. Suppose a man is arrested like that after he very obviously dumps trash on a public sidewalk. In this "trashy" example, I now doubt that the Fourth Amendment applies to seizing (i.e. arresting) that man; if it does not apply then judges cannot scrutinize the anti-littering statute for reasonableness, nor can judges strike down that anti-littering statute because they think it unreasonably lacks an exception for a man who dumps trash on a public sidewalk after the trash was first dumped illegally on his own adjacent private property. If the Fourth Amendment does not apply to an arrest in public without any search, then of course the person who is arrested still can resort to other constitutional rights including habeas corpus, the right to indictment (in federal court), and speedy trial.
According to Eric R. Carpenter, "Seizures Without Searches: Defining Property Seizures and Developing a Property Seizure Model", 41 Gonz. L. Rev. 167 (2013), the first U.S. Supreme Court case regarding a "pure property seizure" without any search was United States v. Place, 463 U.S. 696 (1983). In that case, the Court held that a police dog sniffing suitcases in a public place is not a "search" under the Fourth Amendment. The luggage had been seized for 90 minutes prior to the dog sniff. After the sniff alerted the dog to narcotics, the police obtained a warrant, the luggage was searched, and Mr. Place was arrested. Although the Court held that the pre-warrant sniffing was not a "search," it nevertheless held that the length of the 90-minute pre-sniffing seizure was unreasonable and therefore unconstitutional. Assuming the Court was correct that a dog sniff is not invasive enough to be a search, could the Fourth Amendment be applicable to a seizure of luggage in public without any search? I used to think so. Now I doubt it.
Of course, the police should have and could have gotten the luggage sniffed faster, and maybe that delay was unreasonable in every sense of the word, but perhaps the Fourth Amendment does not ban unreasonable seizures that did not result from any search, instead leaving legislators and law enforcement officers and state constitutions with the (immense) power of determining reasonableness under such circumstances. There's also the Takings Clause to bar police from simply grabbing from you whatever they want.
The Constitution does not say "unreasonable searches or seizures." Moreover, it says that any valid warrant must describe "the place to be searched", which would be impossible if no search is involved.
So, I withdraw my old statement that the Fourth Amendment applies to pure seizures without searches, because I'm not so sure anymore. Incidentally, the notion that the Fourth Amendment may not apply to "pure" seizures also has implications for seizures that do result from searches. In particular, supposing that there must be some sort of search for the Fourth Amendment to apply, the reasonableness analysis ought to focus mainly on the search and its relationship to the seizure, rather than on the seizure by itself, because it would be rather absurd to say that a particular type of seizure would be constitutional if unaccompanied by any search, but would be unconstitutional if accompanied by the most reasonable possible search.
Posted at 9:05 AM