By Mariot Huessy | Staff Editor

April 18, 2024

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In the United States, the Fourth Amendment protects against unreasonable search and seizure. The mainstay test for unauthorized search of government officers comes from Katz v. United States, which claimed that Fourth Amendment protections rested on whether a person showed that they expected privacy, and that their expectation of privacy was reasonable.[1] The takeaway of Katz was that the “Fourth Amendment protects people, not places.”[2] Up until Katz, homes had been absolutely protected: trespass on the home by officers of the law without a warrant was a violation of the Fourth Amendment.[3] In 2001, Kyllo returned to the idea that a home was in some way sacrosanct, citing a litany of decisions that protected homes more strongly than other places.[4]

The idea that the state’s officers cannot just go into a home and search is nothing new, or exceptional to the United States. The sanctity of the home is an ancient concept. Documents from 100 B.C.E.–100 C.E. containing legal codes and reports of cases from Han Dynasty China include an interesting law under the Arresting Statues.[5] The statute stated “Officers are forbidden to enter without an approved reason into huts or houses to arrest people. People may beat and wound intruders in their houses, and the matter is then dealt with according to ‘the Statute on Entering People’s Houses without an Approved Reason.’”[6] Other documents from the same period make similar statements. For example, a commentary on the Chou-li included “[t]hose who, without an approved reason, enter into people’s houses or huts or step onto their carriages or boats, or drag other people to commit legal offense can be resisted and killed, without liability.”[7]

The protection that these statutes offer from officers of the state is astounding for this period and culture. The Han Dynasty succeeded the Qin Dynasty, which was known for its authoritarian laws, and used the same legal system with few changes.[8] The original Kingdom of Qin adopted Legalism as the state school of thought, and used the law to build a governmental system that supported an expansionist, authoritarian state.[9] The legal code that developed was egalitarian: the law applied to everyone, and the punishments doled out to lawbreakers were harsh.[10]

A new concept introduced in this legal code was the crime of aiding and abetting.[11] The populace were broken into groups of five families.[12] If a person within a group of five committed a crime, the other members within their group had to denounce the person to the local magistrates, or be charged as an accomplice, and receive the same punishment.[13] Sentences under Qin Legalism were known as punishments, and while they could include time spent in jail, they often started at forced tattooing and mutilation, before rising to execution.[14]

Despite some reform of the system during the Han Dynasty, the records of legal proceedings mostly involved denunciations of various people.[15] Effectively, the culture of the early Han was the same police state of the Qin.[16] But even with the great importance placed on reporting others to the state officials, the officials themselves were not allowed to enter a home without cause.[17] Further, if they did enter the home, they would be subject to either state punishment, or retributive justice by the home owner.[18] A system created to grow the power of the central state still allowed people the privacy of their homes. It even created accountability for any officer who chose to break these laws.

Much like the true utility of the Fourth Amendment, how well the officials enforced the Statute on Arresting is up for debate.[19] The Qin, and later the Han posted their laws in public places for everyone to read and be aware of every detail of the intensely complex and evolving legal code.[20] While this did not mean universal knowledge, most people of all walks of life had access to not only their responsibilities to denounce any wrong doing, but also their right to protecting their home against unwarranted intrusion.

On one hand, the Qin legal code created an atmosphere where denunciation was the tone of the day. Parents denounced sons for being unfilial, people who served in the house denounced the people they served, and there were always handy neighbors around to denounce one another.[21] In such an atmosphere, giving the people the right to harm or kill officers of the law if they invaded the home might have been seen as a sensible release valve. On the other hand, the policies of the Qin and the Han pushed for an attitude of respectful citizenry in a unified and centralized authoritarian government.[22] It is possible that the state refused to enforce the prohibition against government officers entering people’s homes.

It should also be kept in mind that this was a society which valued military service, growing out of the Warring States period, and had created a promotion system based on the number of heads of enemies of the state that a person could collect.[23] Indeed, many of the denunciations involve crimes regarding the possession of these trophy heads.[24] How free could a person be to defend their rights against someone who might have earned their position by beheading the last person who objected?

Homes deserve special protection. Katz’s privacy test protects us in a whole variety of situations and against technologically advanced searches.[25] However, in an era when we expect our most personal information will be shared, the question of what a reasonable person would believe is private grows narrower and narrower. Respecting the home under trespass is potentially a stronger protection of individual rights. Whatever the detractors of Kyllo wish to say, protecting the home, and giving the right of that protection to the people, is something humans have been doing in law since at least the Legalist reform of the Kingdom of Qin, and probably long before that.

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[1]     See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”) (internal citations omitted).

[2]     Id.

[3]     See Kyllo v. United States, 533 U.S. 27, 31 (2001) (discussing historical usage of trespass from English common law to Katz); see also, e.g., McGuire v. United States, 273 U.S. 95, 98 (1927) (discussing the roots of the idea of trespass ab initio coming from English Common Law to its full adoption as a rule in the United States courts) (citing Six Carpenters, 8 Coke 146(a) (1572), then Commonwealth v. Rubin, 165 Mass. 453, 455 (1896)).

[4]     See id. at 37 (comparing the holding in Dow Chemical where an industrial complex was not granted the same expectation of privacy as a home to Silverman which found intrusion into a home to be a Fourth Amendment violation) (first quoting Dow Chemical v. United States, 476 U.S. 227, 238 (1986); and then quoting Silverman v. United States 365 U.S. 505, 512 (1961)).

[5]     Discovered in Chuyen in central Asia during the 1930s, these legal documents were written on strips of bamboo, and bound together, as was common for the time. Bamboo Slips with Writing (Zhujian) in Qin Seal Script (Qinzhuan), YALE UNIV. ART GALLERY, https://artgallery.yale.edu/collections/objects/230048 (last visited Apr. 11, 2024); see also Anthony Hulsewé, Remnants of Han Law (eBook ed. Brill 2022) (1955) (translating the documents discovered in Chuyen, and discussing the culture that they reveal).

[6]     See Hulsewé, supra note 5, at 36 (translating the Statutes on Arresting).

[7]     See Chun-sun Chang, The Chinese Family in Han Times: Some Review Notes, 1 Early China 65, 67–68 (1975) (reviewing T’ung-tsu Ch’ü , Han Social Structure (Jack L. Dull ed., 1972)) (suggesting that while the book contains excellent sources of research, the inclusion of the various versions of the Statutes on Arresting would provide a more comprehensive view of Han home life).

[8]     See Chris Stewart, Episode 24: Xiongnu to the Left of Me, Rebels to the Right, The History of China, at 9:00 (June 2, 2014), https://thehistoryofchina.wordpress.com/2014/06/02/episode-22-xiongnu-to-the-left-of-me-rebels-to-the-right/ (discussing the first Han Emperor’s turn away from Qin legalism, which did relax under his reign, but retained many of the legal codes).

[9]     See Chris Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, The History of China, at 13:25, 16:17 (Apr. 9, 2014) https://thehistoryofchina.wordpress.com/2014/04/09/episode-16-qins-reformation-and-ascension/ (describing the sweeping social changes of Legalist scholar Shang Yang’s legal reforms to the Kingdom of Qin, such as the changes to the tax code that encouraged young men to enroll in the military, and have large families, as well as favorable immigration policies, all designed to grow the population and turn the Qin Kingdom into a military machine to conquer the neighboring states of the period).

[10]   See id. at 15:50 (detailing the unprecedented moment when, acting under the new Qin legal code which abolished the exemption from the law the noble classes had enjoyed throughout the Yellow River Valley, Qin legalists arrested, tried, and punished the Crown Prince of Qin); id. at 15:24 (describing the Qin sentencing form of punishments, including mutilations and torture before death, as “draconian and excessive, even for their time”); but see Katrina C. D. McLeod & Robin D. S. Yates, Forms of Ch’in Law: An Annotated Translation of the Feng-chen Shih, 41 Harv. J. Asiatic Studs. 122, n.27 (1981) (noting there is evidence that the mutilating punishments were widespread though out the preceding periods of the Shang and Zhou kingdoms).

[11]   See, e.g., Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, supra note 9, at 15:34 (noting that the crime of aiding and abetting meant any people who did not denounce a person they knew to have committed a crime would be punished with the exact same force as the people who committed the crime); McLeod & Yates, supra note 10, at 118, 159–62 (translating records of legal incidents from before 217 B.C.E, such as the killing of an unborn child during an assault on the mother, someone threatening to poison various people, and illicit extramarital sex, all brought to the authority’s attention by interrelated people denouncing their fellow citizens).

[12]   See Robin D. S. Yates, Social Status in the Ch’in: Evidence from the Yün-meng Legal Documents. Part One: Commoners, 47 Harv. J. Asiatic Studs. 197, 218, 231 (1987) (discussing the concept of the five-family unit as asocial and legal unit for Qin commoners); McLeod & Yates, supra note 10, at 134 n.66 (discussing the separation of levels of liability based on the “five-man groups” system).

[13]   Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, supra note 9, at 15:40; Yates, supra note 12, at 218 (reviewing the statutes on registration where if a young man does not register for state service in labor or the military, they are fined two sets of armor, the village elder and the leader of their five family group will be fined one set of armor if they do not report the non-registrant, the five family members will be fined one shield per household, and all will be exiled).

[14]   See id. at 20:12 (describing the highest level of punishment in the Qin legal system, the Extermination of the Nine Familial Relations, noting that they were rarely used as the threat of their brutality were considered a deterrence to potential criminals, but were considered in the sentencing of Shang Yang himself, once the crown prince who had faced the legal system he invented ascended the throne and put him on trial for treason).

[15]   See, e.g., Charles Sanft, Law and Communication in Qin and Western Han, 53 J. Econ. & Soc. Hist. Orient 679, 692 (2010) (“The Shangjun shu propounds denunciation as part of ordinary legal practice, and such a system was in place during Qin and Han times.”).

[16]   See Stewart, Episode 24: Xiongnu to the Left of Me, Rebels to the Right, supra note 8, at 9:05.

This is not to say that the Han legal system was a total break from the Qin legal code. On the contrary, the vast majority of Han law, especially in the early dynasty, was lifted directly from the preceding dynasty, including the use of torture, summary executions, and execution via torture. Rather, it was pretty much just the Qin laws already on the books, but with some of the codes now relaxed and some of the penalties reduced. A kind of Qin Lite, now with 25% fewer executions. Id.

[17]   Hulsewé, supra note 5, at 36.

[18]   Chang, supra note 7.

[19]   See, e.g., David H. Gans, “We Do Not Want to Be Hunted”: The Right to Be Secure and Our Constitutional Story of Race and Policing, 11 Columb. J. Race & L. 239, 337 (2021) (arguing that Fourth Amendment analysis must be sensitive to race, as in the current form, the protections of the Fourth Amendment are unenforceable against officers who make racially motivated searches).

[20]   See Sanft, supra note 15, at 692 (arguing the Qin practice of posting laws publicly, reading them aloud in public spaces, and creating broad access to the legal system for the population intentionally communicated the vital civic role that law played above all else).

[21]   See, e.g., McLeod & Yates, supra note 11, at 141, 147, 150.

[22]   See Chris Stewart, Episode 21: Qin 2: There Can Only Be One, The History of China at 12:50 (May 8, 2014), https://thehistoryofchina.wordpress.com/2014/05/08/episode-19-one-nation-under-qin/ (discussing how the first emperor of the Qin Dynasty implemented Qin law across all China); id. (“Unity was the watchword of the era. Unity of law. Unity of government. Unity of the people.”).

[23]   See Xiran Jay Zhao, The First Emperor of China’s Ridiculously Dramatic Life, YouTube at 10:40, https://www.youtube.com/watch?v=8n1OU9p3fhM (describing the 20 ranks of prestige that the Kingdom of Qin created for its citizens during the early reforms geared toward military strength).

[24]   See McLeod & Yates, supra note 11, at 144–46 (detailing two separate instances of beheaded trophy-related crimes: the attempted theft of one person’s trophy head, and an attempt to claim the head of a person who might not have been an enemy combatant).

[25]   The Katz test itself was created in response to the technological advances in listening devices available to the police in the 1970s. Katz v. United States, 389 U.S. 347, 362 (1967) (“[The concept of trespass’] limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.”) (emphasis added).