Posted by Orin Kerr:
Can the FBI Legally Conduct Warrantless Home Searches?:
http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116613306
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 serching 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.
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