Mr. Jefferson's Conveyance

One of the things I enjoy about law, especially about the more escoteric non-corporate law world, is the opportunity to spend a little time chasing down trivia. Just such an opportunity seemed to arise as I was reading the transcript of oral argument in Arizona v. Gant, a case before the Supreme Court this term. Complaining that the parties had spent little time on the historical background of searches incident to arrest, the matter at issue in the case, Justice Scalia asked:

“What was the situation when the Fourth Amendment was adopted? Do you know? If you stopped Thomas Jefferson’s carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you -- could you then go and search his carriage?”

I might spend a little time on what I think about the case later. But I was more immediately interested in Justice Scalia’s question, and spent some time flipping through a couple of online resources I’ve always found helpful. The most enlightening thus far has been Old Bailey Online, a database consisting of 197,745 criminal trials held in London’s central criminal court. While that database has necessarily given me no clues as to American practice, I do have a couple of thoughts about English practice (on which American practice is largely based, in one way or another).

First, it seems pretty clear that, just as in current US practice, the English police in the 18th and 19th centuries felt pretty comfortable searching the vehicles of people they arrested when they felt that there was evidence of a crime in the vehicle. Though of course they didn’t think about it this way back then, and certainly no in England, the modern US explanation of this phenomenon is that since people have somewhat reduced expectations of privacy in their cars, the police can search a car without a warrant if they have probable cause that there’s evidence of a crime inside. So, for example, when a robber ran off with a saddle, bridge, and martingale, the police found him and searched his chaise for evidence. Similarly, a baker’s assistant was arrested and his cart (though it is unclear whether this was a handheld wagon or a cart with a horse) was searched for missing flour.

The more interesting question is whether there’s any evidence of the police searching a cart or a carriage when the police didn’t, prior to searching, have any reason to believe that there was evidence of a crime inside. I’ve only found one example of what I think is such a situation. In March 1795, a twenty year old man named Robert Charles was found guilty (and transported, presumably to Australia, for seven years) for stealing “two live cock fowls, eight live hen fowls and an iron hand saw” from a “victualler” named George Toomer. As Charles was leaving the scene of the crime in a cart, a watchman named John Humhpry saw him, and “perceived [that Charles] was the same person that put me in bodily fear, about three weeks before”. The watchman followed Charles around, and being reinforced by some colleagues, made the arrest, apparently without knowledge of the thievery of the fowls and saw. But he searched the cart anyway, and found the items that had been stolen from the unfortunate Toomer, for which Charles was eventually convicted. There’s no mention or discussion of whether the policeman had done anything wrong, but, of course, there’s no real mention of legal argument either.

Obviously, none of this is dispositive, and doesn’t even really answer Justice Scalia’s question. I think part of the problem, though, is that the fact pattern is so abberational - how often did the authorities arrest someone in a conveyance in the 18th century without a warrant and without some idea that there might be evidence in their conveyance? I’d bet that the incidence of that can probably be counted on one hand in any particular jurisdiction. I’ve consulted a number of classic treatises on criminal law as well, and none so much as mention what is to be done incident to arrest, and certainly not incident to an arrest in a conveyance. So this may be one of those historically unanswerable questions. But it remains fun to try.