The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

4th Amendment – Search and Seizure

Before the American Revolution

General and Specific Warrants

Prior to 1776, in both Britain and in the American colonies, constables often conducted searches pursuant to “general warrants.” General warrants typically described in very broad terms the sorts of items that the police were looking for, but they did not specify the individual people to be targeted or the particular places where incriminating evidence was likely to be found.

In contrast, a specific warrant, according to Justice Joseph Story, had to “state the name of the party, [and] also the time, and place, and nature of the offence with reasonable certainty.” A specific warrant was therefore meant to protect citizens from arbitrary or unnecessary searches.

In several significant court cases in both Britain and America, individual citizens argued that general warrants violated their privacy rights. The most famous one on this side of the Atlantic was the case of James Otis, which took place in Boston in 1761-72. Otis challenged the government’s use of “writs of assistance.” These were essentially another form of general warrant; they allowed customs agents to search persons and places indiscriminately for smuggled goods. Although general warrants had been used in Britain under older precedents, Otis argued that they were contrary to current interpretations of British law:

But in more modern books, you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed; and will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty office.

John Adams, who transcribed part of Otis’ speech, declared that in Otis’s oration “American independence was born.” But while James Otis may have won the sympathies of his fellow Americans, he lost his legal case.