The Fourth Amendment and ESI

The Fourth Amendment's Warrant clause 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.) U.S. Const. Amend. IV. When written, our founders' major concern was the so-called "general warrants" of the King used to harass and arrest anyone who dared question his authority. The founding generation "… reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the revolution itself." Riley v California, 134 S. Ct. 2473, 2494 (2014) (Roberts, C.J.) See, e.g., Maryland v. Garrison, 480 U.S. 79, 84 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

The presumption of regularity that accompanies the issuance of a search warrant is undermined by deficits in its particularity. "The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. Stanford v. Texas, 379 U.S. 476 (1965); United States v. Marti, 421 F.2d 1263, 1268-1269 (2nd Cir. 1970).