What is "self-help" as a remedy for unreasonable searches and seizures?

Question

In Collins vs Virginia, Justice Thomas explains that:

Historically, the only remedies for unconstitutional searches and seizures were “tort suits” and “self-help.”

What is "self-help"?

Answer 1

In this context, it refers to physical resistance to the person carrying out the search or seizure. The term "self-help" can generally mean a situation where someone is legally entitled to assert their rights, without the need for formal approval from some judicial authority. Here, the assertion is that at the time the Fourth Amendment was adopted, a person was considered able to use some degree of force to resist a law officer who was acting outside the scope of their authority.

In Collins v. Virginia, 584 U.S. ___ (2018), Justice Thomas' concurrence, quoted in the question, cites "Utah v. Strieff, 579 U. S. ___, ___ (2016) (slip op., at 4)". Turning to that case, Justice Thomas' majority opinion included the text:

Because officers who violated the Fourth Amendment were traditionally considered trespassers, individuals subject to unconstitutional searches or seizures historically enforced their rights through tort suits or self-help. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 625 (1999)

The overall topic of the article is what the Fourth Amendment was meant to mean by its framers, when they prohibited "unreasonable searches and seizures". Davies' contention is that the amendment was not particularly directed at warrantless searches, because those were already dealt with by existing legal remedies; rather, it was concerned with the issue of warrants that were overly broad or otherwise unjust. Within this 205-page law review article, Thomas singles out p625. This is within the author's section V.A, which is about the role of a constable in English common law, and the legal framing around such a person's actions.

Davies first says on p624 that

At common law, a search or arrest was presumed an unlawful trespass unless "justified."

The classic citation here is to Entick v Carrington [1765] EWHC KB J98, 95 ER 807, an English case where a search by servants of the crown, on the orders of high officials but without a proper warrant, was upheld as a trespass. It was just as if any private person had broken into the premises. This is what Justice Thomas means by "tort suits"; trespass is a tort, or civil wrong, which somebody could bring before a court even if the defendant was a public official or constable. (Much later, A. V. Dicey's conception of the English Constitution set great store in the fact that the same body of law is applicable to government officials as to anyone else; there was no separate system of administrative justice, as in France, creating an independent standard of conduct.)

Davies then turns to the self-help arm:

"Unlawful" (unjustified) arrests or searches exposed the officer to lawful resistance by bystanders or the target of his intrusion. Unlike modern statutes, the common law did not make it an offense to resist an officer who attempted to make an unjustified arrest or search. Thus, there was a relatively robust understanding of a citizen's right to resist an officer who exceeded his authority.

Again, this is similar to the situation if anybody comes into my house and starts rooting through my private papers. Davies (footnote 204) gives some American authorities in support of his propositions that "Use of force necessary to prevent an officer from making an unlawful arrest was not a crime unless the officer was killed or seriously injured" and "Killing a constable who attempted an unlawful arrest was an offense at common law, but it was manslaughter, not murder."

All of this is not a good representation of the current legal position on the topic of resisting an unlawful search. It is relevant for Justice Thomas' understanding of what the Fourth Amendment requires, in particular relative to the conduct of a state like Virginia or Utah in the cited cases. Thomas claims that the "exclusionary rule", which forbids the use of illegally-obtained material as evidence, is not a requirement of the Constitution - contrary to Supreme Court precedent in Mapp v. Ohio, 367 U.S. 643 (1961) and other cases. The nub of his reasoning is that the Fourth Amendment means something else: if "unlawful acts by officers were only personal, it never occurred to the Framers to apply an exclusionary principle to such misconduct" (Davies at p554). English law did not (and still doesn't) apply such a principle in strict terms. So while the rule may be perfectly acceptable in Federal procedure, in Thomas' view it's not an absolutely necessary consequence of the Fourth Amendment, and therefore cannot override a conflicting state law.

Nonetheless, in Collins Justice Thomas did join with the majority in applying existing precedent. The concurring opinion only suggests revisiting Mapp at some future point.