Defendant didn’t have a reasonable expectation of privacy (standing) in the movements of a cell phone of another. Still, it was with a warrant, and there is no defect in the warrant process. United States v. Beaudion, 2020 U.S. App. LEXIS 35523 (5th Cir. Nov. 11, 2020). The court also gives an interesting brief history of the Fourth Amendment:
A.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects[] against unreasonable searches and seizures.” U.S. Const. amend. IV. English search-and-seizure practices inform the original public meaning of this text. See, e.g., United States v. Jones, 565 U.S. 400, 404-05 (2012).
For a long time, searches and seizures in England were relatively limited. Private parties who witnessed a felony could chase the perpetrator during the “hue and cry,” but they rarely went house-to-house looking for unidentified suspects. William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 28-31 (2009). Customs officials could search ships for counterfeit currency and smuggled goods, but they rarely ventured onto land. Id. at 31-33. And guild officers could inspect merchandise for quality-control purposes, but they rarely investigated people outside their professions. Id. at 33-36. Given the limited frequency and scope of these searches, they generated “little protest.” Id. at 27.
Then the Tudors assumed the throne in 1485, and “the English law of search and seizure underwent a radical transformation.” Id. at 44. The targeted investigations of prior centuries became general searches of sweeping scope. These searches were authorized by general warrants that commanded their enforcers “to search the houses, out-houses, or other places of any person … as upon good ground shall be suspected,” to quote just one example. Richard Kilburne, Choice Presidents Relating to the Office and Duty of a Justice of Peace 171-72 (London, Assigns of Rich. & Edw. Atkins 1680). Thus, the hue and cry morphed from targeted searches for identified felons into “private search[es] … in every Town” of “all suspected houses and places.” Michael Dalton, The Countrey Justice 83 (London, The Company of Stationers 1655). Customs officials received authorization to search not only ships but also any “shop, warehouse, or other place or places whatsoever which they … shall think good within this realm.” 3 Tudor Royal Proclamations 190 (Paul L. Hughes & James F. Larkin eds., 1969). And the Crown expanded guild searches beyond guild members and their competitors to civilians outside the regulated profession. Cuddihy, supra, at 54. The Crown also used general warrants and searches to regulate vagrancy, recreation, apparel, hunting, weapons, and social unrest. Id. at 44.
Some objected that such searches were unlawful and “unreasonable.” Importantly, the objectors framed their arguments in terms of individual rights. Sir Edward Coke, for example, argued that general searches violated Magna Carta’s individualized promise that “[n]o free man shall be taken or imprisoned or dispossessed, … nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Great Charter of Liberties, ch. 39 (1215), reprinted in Select Documents of English Constitutional History 42, 47 (George Burton Adams & H. Morse Stephens eds., 1929); see Cuddihy, supra, at 110. Another frustrated journalist complained, “these scumms of Raskallity come[] with a warrant … to seize on our goods, & commit our Persons to their stinking Dungeons.” Mercurius Pragmaticus No. 45, at 5-6 (Marchamont Nedham 1649).
Violations of personal rights necessitated personal remedies. Writing in the 1640s, Sir Matthew Hale suggested that informants whose criminal reports produced fruitless searches should be liable in tort to the person searched. See 2 Matthew Hale, Historia Placitorum Coronae 151 (London, E. & R. Nutt 1736); Cuddihy, supra, at 269-70 (explaining that Hale “wrote much of the Historia in the 1640s” before it was published posthumously in 1736). Parliament agreed. See Fraud Act of 1660, 12 Car. 2, c. 19, § 4, in 7 The Statutes at Large 460-61 (Danby Pickering ed., London, Joseph Bentham 1763) (“[I]f the information whereupon any house shall come to be searched, shall prove to be false … the party injured shall recover his full damages and costs against the informer[] by action of trespass ….”). And tort liability soon expanded to reach offending officers as well. Indeed, many of the canonical English search-and-seizure cases—whose “propositions were in the minds of those who framed the [F]ourth [A]mendment”—involved trespass suits against officers who authorized and executed general warrants. Boyd v. United States, 116 U.S. 616, 626-27 (1886); see, e.g., Entick v. Carrington, 19 How. St. Tr. 1029, 1030 (C.P. 1765); Wilkes v. Wood, 19 How. St. Tr. 1153, 1153 (C.P. 1763).
Both the posture and pronouncements of those cases reflect the common-law understanding that unreasonable searches and seizures were a person-specific harm with a person-specific remedy. Not just anyone could sue in trespass. Rather, the proper plaintiff was one who “ha[d] a property … in the soil[] and actual possession by entry.” 3 William Blackstone, Commentaries *210. Thus the plaintiff in Entick could seek relief because the defendants “broke and entered [his] dwelling-house” and “disturbed him in the peaceable possession thereof.” 19 How. St. Tr. at 1030. And the plaintiff in Wilkes properly brought “an action of trespass[] for entering [his] house, breaking his locks, and seizing his papers.” 19 How. St. Tr. at 1153. Lord Camden’s famous remarks in Entick underscore this connection between an individual’s property interests and his standing to challenge a search or seizure:
The great end, for which men entered into society, was to secure their property. … By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action . …
According to this reasoning, it is now incumbent upon the defendants to shew the law, by which this seizure is warranted. If that cannot be done, it is a trespass.
19 How. St. Tr. at 1066. Such cases did not contemplate a remedy for those who objected to a trespass suffered by another.
B.
A similar approach to searches and seizures took hold in America. Colonial Massachusetts—which “formulated most of the ideas that formed the specific warrant clause of the Fourth Amendment,” Cuddihy, supra, at 327—patterned its first major limitation on general warrants after England’s sue-in-trespass regime. See Naval Office Law of 1682, Mass. Col. St., in 5 Records of the Governor and Company of the Massachusetts Bay in New England: 1674-1686, at 338 (Nathaniel Shurtleff ed., Boston, William White 1854) (“[I]f any person be damnified by false information, wrongfull searching, or seizing any goods, ships, or other vessell, he may recover the same by an action of the case ….”). And James Otis—whose arguments in the famous Writs of Assistance Case prompted Massachusetts to constitutionalize a right against unreasonable searches and seizures—complained of the same particularized harms that animated Coke, Hale, and Camden in England. See 2 Charles Francis Adams, The Works of John Adams 524 (Boston, Charles C. Little & James Brown 1850) (memorializing Otis’s argument that general writs of assistance “totally annihilate” the “freedom of one’s house” because they permit officers to “enter our houses[] when they please” and “break locks, bars, and every thing in their way”). Twenty-eight years later, Otis’s objections made their way into the federal Constitution. See U.S. Const. amend. IV.
All this history matters. It explains the Fourth Amendment’s requirement for specific warrants. It demarcates unreasonable searches and seizures. And it suggests the remedies for violations of Fourth Amendment rights. Of course, the complexities of history sometimes leave room for debate in answering these questions. But one thing is beyond debate: the Fourth Amendment is not a weapon that uninjured parties get to wield on behalf of others. As with the common law that preceded it, the Fourth Amendment protects individuals’ security “in their persons,” “their … houses,” “their … papers,” and “their … effects.” Ibid. (emphasis added). It does not protect individuals’ security in the property of someone else.
