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Monday, May 29, 2006

Column: All About Eaves

At the risk of stirring up controversy, the time has come for Legal Lingo to dip a toe into the troubled waters of warrantless searches.

In case you’ve been living in a cave somewhere, the country appears to be divided into two camps on the question of whether the Bush Administration can engage in electronic eavesdropping on U.S. citizens without a court order.

Personally, I haven’t a clue who’s right, but the whole thing does highlight what a curious word eavesdropping is. It is, of course, related to eave, the edge of a roof, which comes directly from an Old English word efes (also yfes). But how do you get from a roof edge to electronic surveillance?

It all begins with rain, which tends to fall on one’s roof and slide off the eaves. Yfesdrype (eavesdrip) is recorded as early as 1487 as a term defining the area around a house onto which water from the roof will fall. Because water from one man’s roof might fall on another’s property, Anglo-Saxon law recognized an easement of “eavesdrip.” In fact, ancient Roman law had the same doctrine, known as the right of stillicidium, presumably for the same reason – to stop busybodies from litigating over a little runoff from their neighbor’s roof.

But if busybodies can’t sue, they’ll snoop, so the Anglo-Saxons also tried to stop people from standing just outside a house (within the “eavesdrip”) and listening to their neighbors’ conversations. This became the common law misdemeanor of eavesdropping. Traditionally the crime involved not only listening, but also repeating in a mischievous way what one heard.

Tennessee officially abolished the common law crime of eavesdropping during the 19th Century. Other states appear to have let it die a natural death. Eavesdropping remains a technical legal term; its contemporary meaning is, roughly, “to listen, or attempt to listen, to private conversations without lawful authority.”

If the nosy neighbor looks as well as listens, then it’s even worse: he might be a Peeping Tom. A number of states have enacted Peeping Tom Statutes, which make it a crime to spy through another person’s window. The term Peeping Tom comes from the legend of Lady Godiva. As you will remember, Lady Godiva rode naked through the streets of Coventry, England to protest high taxes. She asked the townspeople not to look at her in the nude but one man – there’s always one – a tailor named Tom, just couldn’t keep his eyes shut. The tailor, who became known as Peeping Tom, was struck blind, or dead depending on the version, the moment he saw her.

Whether or not a warrant is required for all eavesdropping, the word warrant is one of the most ubiquitous terms in legal language. You might not think of it as a household word, and yet it’s used as a noun, a verb, and a term of art for public officials, military officers, and private corporations. The word seems always to be lurking around the corner – sort of like that guy under the eaves.

Warrant evolved from an Old French word (warant) meaning “protector or defender.” Around the 13th Century, the word began to develop its sense as “permission from an authority that protects one from blame.” Thus, a sheriff, armed with a search warrant could enter a home without fearing a lawsuit from the aggrieved homeowner.

The notion of a warrant as a grant of authority gives us such useful terms as arrest warrant, death warrant, warrant of commitment (that is, committing a person to custody), and even the relatively obscure interest warrant – a written order from a company to its bank directing the payment of interest to a bondholder. In the 17th Century, a confession of judgment was known as a “warrant of atturney.” Military lingo creates the warrant officer, who holds his rank by virtue of a written warrant rather than a commission. In Britain, companies that are exclusive suppliers to the royal family are granted the Royal Warrant.

Because they are such powerful tools, search warrants (and arrest warrants, for that matter) have been matters of debate for centuries. Until the middle of the 18th Century, English procedure allowed for General Warrants which gave law enforcement officials open-ended authority to search a citizen’s home in the mere hope of finding any incriminating evidence.

In the American colonies, British officials used a type of general warrant known as a Writ of Assistance to search for smuggled goods. The writs of assistance caused a firestorm in the colonies; indeed they are credited with being the first cause around which the founding fathers rallied.

The most succinct argument against writs of assistance, as voiced by the Massachusetts lawyer James Otis, was that a man’s house is his castle. This well-worn phrase, dating from 1567, first entered the law in 1644 when used by the English Attorney General Sir Edward Coke. By the 1760’s, the castle defense also called the castle doctrine was being referred to as a legal “privilege.” At common law, the doctrine is most often used to justify the use of force – even deadly force – against intruders.

When it came time to draft the Bill of Rights, the former colonists wanted no ambiguity on the matter of warrants. The Fourth Amendment stipulates that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Search warrants are issued ex parte and often in camera; or, if you’re not actually trying to impress your high school Latin teacher, without notice to the person to be searched and in private session with the judge. A valid warrant can authorize police to search for evidence of the commission of a crime as well as any loot allegedly taken in the crime; the latter is known as the fruits of the crime.

If, however, it turns out that the police search was not authorized by a valid warrant, then – in what appears to be a phrase designed to confound law students – everything seized by the police becomes the fruit of the poisonous tree. This doctrine, first used by Justice Felix Frankfurter in Nardone v. United States (1939), holds that any evidence that can be traced to an illegal search must be excluded from trial. It is not clear just how often the fruits of the crime have become the fruit of the poisonous tree but it is, at least, food for thought.

The humble warrant is also related to the foreboding quo warranto, which is the Latin name for a common law action used to challenge the authority of a government official or corporate board. The word warranto is not a genuine Latin word. English lawyers just made it up by adding the “o” to the end. This kind of reverse etymology – words usually go from Latin to English and not the other way – is known as “back formation” and it is really no better than the tendency of some people to add an “o” to the end of words to make them sound Italian or Spanish (“Rudolfo, please turn on the computer-o, I want to surf the web-o”).

The same French root of warrant also gave rise to the use of warrant in the sense of “to vouch for the quality” of something. Thus we have the noun warranty, which is basically a guaranty – not a surprise since warranty and guaranty are actually the same word. The Norman French dialect had the verb warantir (to warrant) whereas Parisian French, which avoided the letter “w,” used guarantir. Both words made their way into English along separate paths, spinning off such related pairs of words as ward/guard and warden/guardian.

In light of all that history, it comes as something of a disappointment that there is no such thing as a search guarrant. Perhaps there should be.

(This column first appeared in the May 2006 issue of New York Law Journal Magazine).