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The Fourth Amendment
"Get thee to a nunnery, go."
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United States


The Fourth Amendment

Justice Marshall Dissent
January 26, 1976
Seal Of The Supreme Court
On the afternoon of August 23, 1972, Awad Khoury, an informant of proved reliability, met with respondent Watson at a public restaurant under the surveillance of two postal inspectors. Khoury was under instructions to light a cigarette as a signal to the watching agents if Watson was in possession of stolen credit cards. Khoury lit a cigarette, and the postal inspectors moved in, made the arrest, and, ultimately, discovered under the floor mat of Watson's automobile the stolen credit cards that formed the basis of Watson's conviction and this appeal.

... The Court reaches its conclusion that a warrant is not necessary for a police officer to make an arrest in a public place, so long as he has probable cause to believe a felony has been committed, on the basis of its views of precedent and history. As my Brother Powell correctly observes, (concurring), the precedent is spurious. None of the cases cited by the Court squarely confronted the issue decided today. Moreover, an examination of the history relied on by the Court shows that it does not support the conclusion laid upon it.

... The common law rule was indeed as the Court states it:

[A] peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.

... To apply the rule blindly today, however, makes as much sense as attempting to interpret Hamlet's admonition to Ophelia, "Get thee to a nunnery, go" (2) without understanding the meaning of Hamlet's words in the context of their age. (3) For the fact is that a felony at common law and a felony today bear only slight resemblance, with the result that the relevance of the common law rule of arrest to the modern interpretation of our Constitution is minimal.

Footnote 2: W. Shakespeare, HAMLET, Act III

Footnote 3: Nunnery was Elizabethan slang for house of prostitution.

Text excerpt:


Get thee to a nunn'ry: why wouldst thou be a breeder of sinners? I am myself indifferent honest; but yet I could accuse me of such things that it were better my mother had not borne me: I am very proud, revengeful, ambitious; with more offences at my beck than I have thoughts to put them in, imagination to give them shape, or time to act them in. What should such fellows as I do crawling between earth and heaven? We are arrant knaves, all; believe none of us. Go thy ways to a nunnery. Where's your father?