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St. Thomas Law Review

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Article

Abstract

As late as 1930, and on several occasions prior to that date, Harvard Law Professor Felix Frankfurter could offer, as an example of something that the Supreme Court would almost never be called upon to decide, "whether the [Fourth Amendment] protection against 'unreasonable searches and seizures' is violated. In 1939 Professor Frankfurter was appointed to the High Court, where he would serve for 23 years; and where, as Justice Frankfurter, he would participate in a great many notable opinions having to do with whether the Fourth Amendment protection against unreasonable searches and seizures had been violated. That Professor Frankfurter made a bad guess doesn't make him a bad guesser. From the adoption of the Fourth Amendment in 1791 until the decision in Weeks v. United States in 1914, the Supreme Court had almost nothing to say about the meaning of the Fourth Amendment's protection against unreasonable searches and seizures, for the very good reason that nobody asked. A constitutional provision that engendered jurisprudence about once every 123 years was unlikely to engender much jurisprudence. Fremont Weeks was the man who got around to asking the Supreme Court what the Fourth Amendment meant. While Weeks was being arrested at the train station in Kansas City, Missouri, police officers entered his home without a warrant; searched; and seized various papers and other evidentiary artifacts. After turning the fruits of this search over to the U.S. marshal, the police and the marshal returned to Weeks's home and searched again, seizing still more documents. None of this searching and seizing was done pursuant to warrant. Charged with various federal crimes relating to the conduct of a lottery, Weeks moved for the return of his unlawfully-seized property. The motion was denied upon the representation of the prosecution that the property in question was evidence, and would be employed as such at trial. Weeks renewed his objection at the time the demised papers were offered in evidence against him." His objection was overruled. It was undoubtedly the case that, at common law, evidence was not subject to suppression because it had been unlawfully obtained...But Weeks did not call upon the Court to construe the common law. It called upon the Court to construe the Fourth Amendment.

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