Writs of Assistance


I am writing this in response after attending a seminar related to criminal drug defense.  Here  are some excerpts I found you interesting and thought provoking. The most interesting speaker I thought was a lawyer from Lubbock who spoke on the 4th amendment and illegal searches and seizures. Below is a quote he spoke of by Justice Brandeis in the first case that discussed wire-tapping. He thought this was the most poignant quote regarding our 4th amendment rights:

U.S. v. Olmstead, 277 US 438, 479:

(Brandeis dissenting)…"And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of theFourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth."

He spoke of a guy named James Otis from the American revolution, who sadly, I had never heard of.  I just did a Wikipedia search on him (James Otis - Wikipedia), and it is actually very interesting and I would encourage those who are interested to read it (especially the section on the "Writs" that existed back then). He evidently was the first Founding Father who spoke against these "Writs of Assistance."  The writs were general search warrants that were executed under the crown.  One interesting quote from his most famous speech was the following:

"Otis relied on English law books to prove that only special warrants were legal and further attacked the writs as “instruments of slavery.” Defending the right to privacy, he proclaimed that the power to issue general search warrants placed “the liberty of every man in the hands of every petty officer.” In perhaps his most moving passage, Otis declared, “A man’s home is his castle, and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it is declared legal, would totally annihilate this privilege. Custom house office may enter our houses when they please and we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain. What a scene does this open! Every man, prompted by revenge, ill humor, or wantonness to inspect the inside of his neighbor’s house, may get a writ of assistance. Other’s will ask it from self-defense; one arbitrary action will promote another, until society be involved in tumult and blood.” With remarkable accuracy, Otis’s words captured the mood of the midnight visitation by totalitarian police which would terrify a later era less sensitive to individual freedom."

I find this sentiment particularly moving and I would encourage people to really try understand what Otis is conveying.  I especially liked what he said about the power to issue search warrants being in the hands of every petty officer. Is this not what is happening with the blood search warrants these days?  And the so-called "mandatory blood draws"?  Is this not the same thing as a "Writ of Assistance"?  It is after reading and considering passages like this I am thankful that I chose to defend citizens and their constitutional liberties, as I believe our Founding Fathers did over 200 years ago.