Search and Seizure - Figurative or Constructive Searches

Figurative or Constructive Searches

In corporate and administrative law there has been an evolution of Supreme Court interpretation in favor of stronger government in regards to investigatory power. In Federal Trade Commission v. American Tobacco Co., the Supreme Court ruled that the FTC, while having been granted a broad subpoena power, did not have the right to a general "fishing expedition" into the private papers, to search both relevant and irrelevant, hoping that something would come up. Justice Holmes ruled that this would go against "the spirit and the letter" of the Fourth Amendment.

In the 1946 case of Oklahoma Press Pub. Co. v. Walling, there was a distinction made between a "figurative or constructive search" and an actual search and seizure. The court held that constructive searches are limited by the Fourth Amendment, where actual search and seizure requires a warrant based on “probable cause”. In the case of a constructive search where the records and papers sought are of corporate character, the court held that the Fourth Amendment does not apply, since corporations are not entitled to all the constitutional protections created in order to protect the rights of private individuals.