ARLINGTON, Va.—A petition asking the Supreme Court to revive the original meaning of the Fourth Amendment is building momentum with supportive briefs from criminal law and procedure scholars, people who have been harmed in wrong-house raids, and civil rights organizations. For almost all of this nation’s history, the “Oath or affirmation” requirement of the Fourth Amendment required that a witness with firsthand knowledge swear to the truth of facts used to support a warrant application; only in recent decades have courts disregarded the requirement to allow hearsay. An Institute for Justice (IJ) case asks the Supreme Court to plainly interpret the Constitution and restore this critical safeguard.
“The Fourth Amendment requires that warrants be ‘supported by Oath or affirmation,’” explained Laurent Sacharoff whose groundbreaking law review article on the meaning of “Oath” led to the lawsuit and who now supports the petition in his capacity as amicus. “‘Oath or affirmation’ had a very specific meaning at the founding—firsthand testimony by a direct witness; probable cause could not be ‘supported by’ hearsay. But in Jones v. United States, the Supreme Court ignored that language and its original meaning, relying instead on policy preferences. We expect the current textualist and originalist Court to fix this clear historical error.”
As a result of this misreading of the Constitution, officers and prosecutors can use unreliable, secondhand information to get a warrant. Warrants come with extraordinary power to invade private property, often with officers poised for a firefight.
A joint amicus brief from Kenneth Walker, the boyfriend of Breonna Taylor, and Anjanette Young, a victim of a wrong-house raid in Chicago, clearly demonstrates the problems that can come from not requiring firsthand testimony to support warrants.
In order to get a warrant for Taylor and Walker’s home, an officer fabricated a conversation with a postal inspector, i.e., hearsay. The warrant that authorized the raid on Young’s home was obtained after an informant mistakenly identified her address as the location of a police target.
A brief from law professor Laurent Sacharoff and other Fourth Amendment experts probes the history of the Warrant Clause, demonstrating that only firsthand testimony should meet the standard set by the Constitution. Professor Sacharoff and the Civil Rights Clinic at the University of Denver first brought the lawsuit from Michael Mendenhall that IJ has petitioned to the Supreme Court.
A brief from the National Police Accountability Project and the Law Enforcement Action Partnership focuses on how warrant practices have reduced the ability of judges to probe the truthfulness of secondhand testimony.
A final brief from civil rights attorneys presents two additional stories of wrong-house raids that led to the serious injury of a 19-month-old and an elderly woman. In both cases, and under the proper standard, judges may well have rejected those warrant applications because they relied on hearsay.
“We are incredibly grateful to all of the amici for their invaluable support,” said IJ Senior Attorney Anya Bidwell. “Kenneth and Anjanette especially have been through so much. It is inspiring to watch them fight for the rights of others.”
In the case presented to the Court, Michael Mendenhall’s townhome was searched and his commemorative baseball bat seized after the police used secondhand information to get a search warrant. He was also forced to spend a night in jail. The testimony of a single, unreliable witness was passed like a game of “telephone” from police officer, to detective, to judge. Days after his arrest, the charges against Michael were dropped. But the police have kept his bat.
The Institute for Justice works to protect the U.S. Constitution through its Project on the Fourth Amendment and Project on Immunity and Accountability. IJ is representing families in Georgia, Indiana, and North Carolina whose homes were wrongly raided. IJ is also suing on behalf of a woman wrongly arrested in Florida.