Total number of published federal court cases in which the phrase “Fourth Amendment” appeared, from January 1, 1900, to December 31, 1905: 9.
Total number of published federal court cases in which the phrase “search warrant” appeared, from January 1, 1900, to December 31, 1905: 6.
Mike McDougal says:
Total number of published federal court cases in which the phrase “Fourth Amendment” appeared, from January 1, 2004, to December 31, 2009: 3,000+
Total number of published federal court cases in which the phrase “search warrant” appeared, from January 1, 2004, to December 31, 2009: 3,000+
March 5, 2010, 6:24 pmTNeloms says:
What about total number of federal court cases period from 1900-1905 and from 2004-2009?
March 5, 2010, 6:29 pmruuffles says:
I bet if you plot the cases vs year, you’ll see a spike starting in the 1950s. ChiefWarrenBrennanMarshall says you’re welcome.
March 5, 2010, 6:31 pmtroll_dc2 says:
How many federal judges were there in 1900-1905? How many federal criminal laws existed then?
It was a truly different era.
March 5, 2010, 6:32 pmAnderson says:
Total number of Mississippi Supreme Court opinions including the words “darky” or “darkies”: 8.
Number of these in which the word was not a direct quotation of a witness’s statement: 1.
… Westlaw is fun sometimes.
March 5, 2010, 6:38 pmSteve says:
If you search state court cases for the same time period, you find 14 appearances of “fourth amendment” and 128 of “search warrant.” Some of this is attributable solely to the increased scope of federal law enforcement responsibilities over the last century, as opposed to the evolution of Fourth Amendment law.
March 5, 2010, 6:48 pmOrin Kerr says:
Steve:
Definitely true, but note also that the Fourth Amendment didn’t apply to the states at the time, as it was pre-incorporation: The 14 appearances of “fourth amendment” in the state cases refer to federal law, but are not actually federal Fourth Amendment cases.
March 5, 2010, 7:08 pmOrin Kerr says:
troll_dc2 says:
This isn’t entirely responsive, but the total number of published federal cases from 1900-1905 with the “united states” as a party: 3019
March 5, 2010, 7:10 pmRoscoe says:
I am betting the spike starts in the early 1920s, after Prohibition was passed.
March 5, 2010, 7:37 pmJ. Aldridge says:
March 5, 2010, 7:52 pmMike McDougal says:
Neither Lexis nor Westlaw liked the first set of questions. Surely they’d self-destruct if I asked your question.
March 5, 2010, 8:27 pmIlya Somin says:
I think the scope of federal criminal law was very narrow at the time, and of course federal courts lacked the power to review state criminal searches for compliance with the 4th Amendment. I bet there was a massive spike in such cases after Prohibition, however, which among other things more than doubled the total number of federal prisoners from 5000 in 1920 to 12,000 in 1930.
March 5, 2010, 8:31 pmProfane says:
I bet if you plot the cases vs year, you’ll see a spike starting during the 1980s. The Drug War say Thank You.
March 5, 2010, 9:20 pmBill N says:
No doubt, but I’d expect that the spike began with the Espionage Act and the Sedition Act of WWI vintage.
State courts in the Gilded Age and Progressive Era were not shy about overturning convictions on grounds of procedural irregularities (outraging the public against the courts and providing a rationale for lynching), but I have no idea how many involved searches deemed unlawful pursuant to state constitutional law. The cases I’ve seen typically involved problems with juries or faulty indictments.
March 5, 2010, 10:04 pmAnonsters says:
Give me about 20 minutes, and I’ll post the data by year for 1900-2009. Just finishing up “search warrant.”
March 5, 2010, 10:21 pmneurodoc says:
FWIW, I would note that perseveration can be a manifestation of right parietal lobe dysfunction.
March 5, 2010, 10:33 pmneurodoc says:
If these numbers (# “Fourth Amendment”; # “search warrant”; # “united states” as a party) are somehow meaningful, wouldn’t it be informative to know what they were for some subsequent 5-year interval(s)? Was there a point in time after which these same numbers started to rise strikingly? What “meaning” is there in any of this?
March 5, 2010, 10:41 pmJ. Aldridge says:
Facts tend to keep me in a perseverative state when confronted with overwhelming fictions.
March 5, 2010, 10:49 pmAnonsters says:
This is a PDF, but here we go:
http://sites.google.com/site/dmvindc/4AData.pdf
It’s from Westlaw’s ALLFEDS db. The exact search string I put on the top of the charts after the table.
March 5, 2010, 10:55 pmJ. Aldridge says:
I was expecting much larger spikes during prohibition. Interesting.
March 5, 2010, 11:22 pmChrisIowa says:
For the time, when Prohibition became a Federal Issue and when it was repealed as a Federal Issue, the change in the number of cases is rather apparent. It only looks small in relation to later events.
The later increase was perhaps kicked in by marijuana in the mid 30′s? And given another kick in response to those long haired hippie freaks in the 60′s?
March 5, 2010, 11:47 pmJohnF says:
I guess this shows the low crime rate 100 years ago, right?
March 5, 2010, 11:54 pmTomHynes says:
Anonsters:
Fascinating chart. Why the huge jump in the 2000s? Did Bush really put that many more people behind bars?
March 6, 2010, 12:00 amAnonsters says:
Yeah, I thought that was odd. I was going to guess it has something to do with the Westlaw database (like maybe including unpublished decisions only after a certain time?) But that’s a wild guess.
March 6, 2010, 12:03 amLior says:
The FBI was founded in 1908, and its predecessor the BI was tiny and had a very limited portfolio. In other words, the Federal Government was rather limited in its ability to violate the 4th Amendment in the time period 1900-1905.
March 6, 2010, 12:03 amOrin Kerr says:
Anonsters, thanks! That’s good work.
Tom Hynes:
I think that’s just the fact that the databases expanded: “unpublished” opinions are the majority of new decisions in what used to be just a database of “published” decisions.
March 6, 2010, 12:08 amAnonsters says:
No problem. Here’s the table data as a Google Spreadsheet, in case anyone wants to play with it (e.g., it lets you download the thing as an Excel spreadsheet).
March 6, 2010, 12:12 amMike McDougal says:
Don’t get all philosophical on us.
March 6, 2010, 12:26 amneurodoc says:
What is life if one doesn’t try to discern meaning in what goes on in the world around them, that is get “philosophical”? (If you come back at me with something about sex, drugs, and rock and roll, I’ll say even that has meaning for the thoughtful.)
March 6, 2010, 9:06 amMike McDougal says:
Neurodoc, just be, man. Just be.
March 6, 2010, 9:23 amData Management Matters says:
These charts are pointless. They’re tracking absolute numbers. The measure is only useful/statistically interesting if it’s plotted as a percentage (of total case, of criminal cases – hell, even as a percentage of population). You learn (literally) nothing from this dataset.
March 6, 2010, 9:40 amRoscoe says:
You don’t think that this is a useful depiction of how limited the federal role in law enforcement was during the first half of the Republic’s existence?
March 6, 2010, 12:35 pmEd H. says:
Lessee, at a glance, a citation increase from 0 to 5400 versus roughly (memory) a population increase of 3x in 100 years. That’s something.
Looks like we shouldn’t take DMM’s “(literally) nothing” too literally.
March 6, 2010, 12:37 pmDuffy Pratt says:
Isn’t the point that, before the exclusionary rule, the Fourth Amendment was not even an issue in criminal cases. If it, or search warrants, got mentioned at all, it was probably in a passing description of the facts of the case, and not because it was actually at issue.
At that time, the most likely way for a fourth amendment violation to become an issue in a case was through a civil action, likely for trespass or for destruction of property. Those cases would likely be against the individual law enforcement officers, and its possible that many of those would go to state court. They would be removable when against a federal officer, but otherwise they would have to rest on diversity jurisdiction since there was no direct cause of action for a violation of constitutional rights at that time.
So the way the issue would arise is that the plaintiff would claim trespass, or some other common law claim. The defendant would claim that he was acting lawfully in his official capacity. And then the plaintiff would say that the action was ultra vires because it violated the Fourth Amendment. Cases like that were exceedingly rare.
March 6, 2010, 1:00 pmJoe says:
“published” seems important here — search warrants were involved in district cases more than once a year, I gather.
BTW, Lexis gave me slightly different results.
March 6, 2010, 3:10 pmJ. Aldridge says:
The Fourth was seen as a safeguard over revenue collection by the U.S Government. Imagine heads of revenue offices issuing warrants that never described the place or things to seize, or have any reasonable cause (General Warrant). Multiple unrelated businesses could end up being searched. This is the evil the Fourth remedies.
March 7, 2010, 4:41 amnone says:
Exactly. Not only that, but telephones didn’t exist.
I don’t really know what implication Prof Kerr expects us to draw from this post. Guess what dood: the more orwellian the world gets the more important the 4th amendment becomes
March 7, 2010, 1:18 pmRoger the Shrubber says:
Neurodoc, you’re directly responsible for the coffee that just got spit on my computer screen. There must be some sort of medical malpractice claim here.
Move aside, and let the man go through. Let the man go through.
Let Neurodoc practice his love.
March 8, 2010, 10:36 amohwilleke says:
Some of the concern is linguistic and contextual. “Search warrant” is probably not the term commonly used for that form of process, interlocutory appeals were very rare, and trial court decisions were very rarely published (nor were appeals from inferior to superior courts below the U.S. Supreme Court in many cases).
The federal judiciary was tiny at the time, of course, as well.
March 8, 2010, 5:50 pm