The Volokh Conspiracy - Can the FBI Legally Conduct Warrantless Home Searches?:

Here's a puzzle for any Fourth Amendment buffs, legal historians, or FBI agents out there. I was leafing through my federal criminal code book not long ago — what, are you saying you don't do that in your free time? — and I came across the following criminal statute:

18 U.S.C. 2236 Searches without warrant
Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search . . . shall be fined under this title for a first offense; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both.
This section shall not apply to any person . . . making a search at the request or invitation or with the consent of the occupant of the premises.

Hmm, that's odd, isn't it? The statute seems to be saying that federal law enforcement officials can only conduct warrantless home searches with an occupant's consent. They can't conduct home searches pursuant to other standard exceptions to the warrant requirement, such as exigent circumstances. I'm wondering, can this be right?

My very quick research suggests that this provision was passed in 1921, when the Fourth Amendment was in its infancy and before the modern exceptions to the warrant requirement (such as exigent circumstances) were recognized. The original text was part of a bill that was designed as a supplement to the National Prohibition Act, and was designed to limit the then-expanding powers of federal law enforcement agents. At that time, the law stated:

[A]ny officer, agent, or employee of the United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor.

Can anyone shed light on this statute? Are FBI and other federal law enforcement agents taught to follow it? Or has it been forgotten? There is no suppression remedy if it is violated, so it's not a provision that a defendant can invoke if the feds to break this law in the course of searching his house. But it remains on the books 84 years after it was passed, and I'm wondering what effect it has today.

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	[Orin Kerr, May 20, 2005 at 2:21pm] Trackbacks Can the FBI Legally Conduct Warrantless Home Searches?: Here's a puzzle for any Fourth Amendment buffs, legal historians, or FBI agents out there. I was leafing through my federal criminal code book not long ago — what, are you saying you don't do that in your free time? — and I came across the following criminal statute: 18 U.S.C. 2236 Searches without warrant Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search . . . shall be fined under this title for a first offense; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both. This section shall not apply to any person . . . making a search at the request or invitation or with the consent of the occupant of the premises. Hmm, that's odd, isn't it? The statute seems to be saying that federal law enforcement officials can only conduct warrantless home searches with an occupant's consent. They can't conduct home searches pursuant to other standard exceptions to the warrant requirement, such as exigent circumstances. I'm wondering, can this be right? My very quick research suggests that this provision was passed in 1921, when the Fourth Amendment was in its infancy and before the modern exceptions to the warrant requirement (such as exigent circumstances) were recognized. The original text was part of a bill that was designed as a supplement to the National Prohibition Act, and was designed to limit the then-expanding powers of federal law enforcement agents. At that time, the law stated: [A]ny officer, agent, or employee of the United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor. Can anyone shed light on this statute? Are FBI and other federal law enforcement agents taught to follow it? Or has it been forgotten? There is no suppression remedy if it is violated, so it's not a provision that a defendant can invoke if the feds to break this law in the course of searching his house. But it remains on the books 84 years after it was passed, and I'm wondering what effect it has today. I have enabled comments.