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The Fourth Amendment: Exceptional Or Fantastic?

The rule is: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. 

The current debate… how do we apply this rule, this so called Fourth Amendment, to the virtual world?  Orin “The Same As We Do Everywhere Else” Kerr and Scott “Have You Seen Everywhere Else Lately” Greenfield get into a bit of a kerfuffle over in the comment section at Simple Justice: 

Kerr:  It seems to me that you see the choice as being between (a) your personal fantasy of what the Fourth Amendment should be or (b) a virtual version of what the Fourth Amendment is in the physical world. You then lament that if the choice is (b), because you don’t like the Fourth Amendment we have now… 

Greenfield:  And what’s wrong with my wanting my personal fantasy of the Fourth Amendment?  The state of the Fourth is horrific, with a general rule that is observed only as lip service prefacing a million exceptions.  My personal fantasy is to return to the rule.  My personal fantasy is to not perpetuate an exception for everything…  

To be fair, I’ll admit to oversimplifying Kerr’s position, and you can read every detail in his law review article.  But it got me thinking about exceptions.  How many exceptions can you have, before you no longer have a rule?  Here are a few, and that means in relation to how many there are total, just a few… 

The Terry frisk(Terry v. Ohio) – no mere hunches allowed, police must have specific and articulable facts, and inferences from those facts, that lead them to believe that “criminal activity may be afoot”.  Seems reasonable, and it’s that damned adjective “unreasonable” that causes all the problems.  Nothing unreasonable allowed, so as long as 5 out of 9 think it’s not unreasonable, then it’s OK. 

Terry was for folks walking the streets, but stopping a car is like stopping someone on the street, so we’ll extend Terry to traffic stops.  And since it’s OK to arrest someone for a traffic violation(Atwater v. City of Lago Vista) the police should then be able to search every car incident to arrest.  But wait!  In less than one percent of cases, they won’t have cause to search incident to arrest, see Gant v. Arizona.  But as long as they have reason to tow the car (the other 99.99%) they have to do a full inventory of the vehicle, you know, so you don’t falsely accuse them of taking your stuff. 

As long as we’re driving, how about checkpoints?  You know, cops pulling everyone over, with no observed wrong doing?  Well, DWI is bad, so there’s a bad guy exception for that (Michigan v Sitz), and DWI plus death is really bad, so there’s an extra extra exception for that (Illinois v. Lidster), and since you have to check everyone coming into the country, may as well throw in an immigration checkpoint exception away from the border too(United States v. Martinez-Fuerte). 

There are also plain view, and open fields, and exigent circumstance exceptions.  Wait.  That last one’s too important for a mere fly-by mention.  “Exigent circumstances” means if the police think it’s an emergency, then they just might not have time for that old warrant requirement, and we’re not going to make them get one. 

Of course, sometimes they actually do get a search warrant, which a judge reviews and signs, but even if they make some mistakes along the way, SCOTUS may just create a good faith exception (U.S. v. Leon), which could then end up being the exception that swallows the rule. 

If the evidence is obtained illegally, what next?  Well the District Attorney can still use it in front of the Grand Jury(United States v. Calandra) because we don’t want to interfere with the effective discharge of their duties.  And if they can show they would (might) have gotten the evidence anyway, then the inevitable discovery doctrine will justify its admission(Segura v. U.S.;Nix v. Williams). 

Enough.  I haven’t covered the half of it, but by now you get the point.  I’ve weighed in before on the Kerr/Greenfield digital divide, and won’t repeat myself here. But let me ask the question one more time… 

How many exceptions does it take before you no longer have a default rule?

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  1. I really don’t think that’s a valuable way to approach the question. I understand the rhetorical point you’re trying to make, but there’s obviously still a rule or nothing would ever get excluded. It would be much more useful to discuss which exceptions you think allow unreasonable searches.

  2. “there’s obviously still a rule or nothing would ever get excluded”

    Except not much gets excluded.

  3. I’d be interested in seeing statistics on that. Also, keep in mind that in a perfect world a court would never have to exclude anything because the rule is meant to discourage illegal searches in the first place. Obviously, we don’t live in that world, but fewer exclusions could be evidence that the rule is actually working.

    That’s why I think it makes sense to attack Fourth Amendment jurisprudence not on the fact that little is excluded, but on specific types of evidence that are allowed which shouldn’t be. In this case, the generalization doesn’t work: you need the specifics.

  4. Daniel

     /  April 21, 2010

    Andrew. The problem with specifics is that this is what has gotten us where we are now. Modern life is much more complicated today than when the 4th was passed; we are downing in details.

    The other issue is that 4th amendment is by its wording deductive, not inductive. If you try and build the rule up from the bottom you would be involved in that ordeal forever.

    My own take on the situation is a little different. I think the much bigger problem is not what is “unreasonable” but the fact that a local judge almost never rejects an application for a search warrant. For me the real hole in the 4th is “probable”. Judges a long time ago stopped evaluating applications for search warrants for probable cause. If the police want it, they get it. I’m less concerned about all the exceptions where the police don’t need a warrant and more concerned about how judges have abandoned their role of actual gatekeepers of probable cause

  5. Any one person who tried to deal with any area of law fully would “drown in details.” That’s why it takes such a large judiciary and bar to figure out the law in this country.

    I’m not saying we have to look at each 4th Amendment case de novo. I want to see it examined by certain types of evidence, because bemoaning the overabundance of exceptions in general doesn’t actually propose a viable solution, unless you think that there should be no exceptions whatsoever.

    So, develop rules for different kinds of evidence and work at that level, trying to find the balance between broad and minutiae rules.

    As to your problem with search warrants being so easy to get, what would you do about it? And if warrants are so easy to get why do we still see no-warrant cases?

  6. Daniel

     /  April 21, 2010

    Andrew. Thanks for the response. The reason that we still see no warrant cases is because in a country of 300 million there are always going to be outliers. I don’t think you make a sane system by covering all the outliers. That’s part of the reason I’m less concerned than others about the exceptions to the need to apply for search warrants. These type of cases make good publicity and they make for nice law school bar exam questions but the truth of the matter is that they don’t come up frequently in day to day policing. The problem of judges writing “probable” cause out of applications for search warrants is that it is more subtle but much more corrupting.

    As for what is to be done about it I think several things. First, I think appellate courts should be much more willing to second guess judges on when search warrants are issued. I think the standard as it stands is too deferential. One reason that judges have abandoned probable cause analysis is that they know that no one is looking over their shoulders. Tied in with this is the sheer number of judges (more than 50% at last count) whose primary law background is as prosecutors. While I don’t want to suggest that people can’t put behind their most egregious biases when they become judges I do think that one’s professional background colors their view of what is probable. So I think a second thing that can be done is to increase the experiential diversity of people appointed to the bench.

    But I honestly think the biggest issue really is cultural. There has been a tremendous shift in the last 50 years from a judiciary who saw their primary function in criminal law as “truth seeking” to a judiciary that sees criminal law as just another arena for political and academic point scoring. For me, the individual cannot ever be just a number in the huge Juggernaut of the law. Judges have abandoned probable cause analysis because they no longer see it as an act that effects and affects a unique human individual but instead see a search warrant as a tool of “police work”. It has just become part of the way the game is played. People see it as just another procedural hoop to jump through instead of a violent intrusion of the public will into the inherent dignity of the human subject.

  7. I don’t disagree with your desire for more appellate oversight. I do think, though, that that’s an inherently individual approach. Also, I was responding more to the original posts about the rules themselves. Your concerns seem to be about the current rules being misapplied by trial courts (which obviously happens, but it’s a different issue.)

  8. The problem, Andrew, is that we actually operate in the real world.

    You can probably justify any individual exception in the abstract if you don’t believe the Fourth Amendment actually ought to mean just what it says. But if you either take the Amendment literally or look at the exceptions as they are applied by the courts (including the Supreme Court, which is where those exceptions are calcified), what you see is that the rule effectively vanishes. It exists primarily as a linguistic construct, there to be paid verbal but not practical obeisance.

    Here’s what the Court tells us: Warrantless searches are per se unreasonable except in a few specific, narrow, well-established circumstances. The list: (1) probable cause + a car; (2) probable cause + an exigency; (3) reasonable suspicion; (4) an arrest; (5) we’d have gotten around to a legal search anyway, so what the hell [that's actually called "inevitable discovery"]; (6) administrative searches; (7) border searches even if they’re not near the border; (8) inventory searches; (9) plain view; (10) plain scent; (11) public safety; (12) . . . aw enough already. There are dozens more.

    And those are only when there is no warrant. When there’s a warrant, even if it’s not based on probable cause (remember that language “no warrants shall issue but upon probable cause”) that’s OK because everyone acted in good faith, which is really all we care about.

    And then there are times when there’s a search but it simply doesn’t count. Dog sniffs are the standard example, but there’s also consent.

    What are the proper exceptions?

    I suppose freely and voluntarily given consent, when the person is first specifically and convincingly informed that there really will be no consequence for a refusal. Except that there’s pretty much always a consequence for a refusal, so consent is never really freely and voluntarily given, even though the courts pretty much always think it is.

    And probable cause plus a true exigency where the cops really couldn’t get a warrant. That’s exceptionally rare in this day when there are cell phones and fax machines and computer in every cop car. But if it happens then maybe.

    Here’s the reality. From the moment the Court created the exclusionary rule (1913), and certainly from the moment it was applied to the states (1961), it’s been backing away from it. It’s created all these exceptions. And it’s instructed the lower courts that they are to be careful not to second guess police or whoever issues warrants.

    It’s understandable that judges don’t want to throw out evidence of crime, and it’s understandable that cops want to get it however they can and that prosecutors want to use it by god. So the evidence comes in. The bad guy charged by the cop is convicted. The officer is promoted despite having violated the Fourth Amendment. And the police can’t be sued because they have qualified immunity which means, basically, that unless the Supreme Court has specifically said that they can’t do what they did, it’s OK. And amibiguities and close cases are decided in favor of the cops.

    The cost of our living with all that is that there’s no rule left, the Fourth Amendment is gone except as a linguistic talisman. The rule, insofar as it does exist, is an exception to the collection of exceptions.

    Admissibility becomes the rule. Exclusion, enforcement, actual application of the Fourth Amendment, becomes the exception.

  9. Here are my problems with your argument:

    1. You seem to only want the courts to look beyond the text when it helps you. The entire exclusionary rule is a judicial invention. Don’t get me wrong: I think it’s a good one (and ultimately I’m on your side about this entire issue). But it’s disingenuous to seek a strict application of the text and only the text while supporting the exclusionary rule.

    2. Your ability to create a long list of exceptions, while a strong rhetorical move, doesn’t actually show what you claim it does (that the rule has been swallowed up by the exceptions.) I think you realize that there are still a lot of times that a search would be illegal, and I suspect that you could devise categories of illegal searches to match your categories of exceptions. It’s ultimately a futile exercise, though, because it’s easily manipulable depending on how you select your categories.

    The existence of a lot exceptions doesn’t show, as you claim it does that there are far more exceptions than applications of the rule. If you come up with a million exceptions you still have to compare that to how many situations there were originally. A million exceptions is nothing if there were a trillion original applications.

    3. You accuse me of relying too much on theory, but your entire argument is founded solely on rhetoric, assumption and anecdote. You haven’t provided any actual analysis comparing the current state to how it would be if we had no Fourth Amendment at all. And do you really think that it would be the same? Honestly? I’ll admit, I don’t have anything beyond anecdotal evidence either. But I do know that the police aren’t busting down my door every time there’s a crime in my neighborhood. The current situation at least feels a lot better than I think a no-Fourth world would. Do you disagree?

    4. You look at judicial exclusion as the only application of the Fourth. Where there is no exclusion you claim that means there’s no Fourth. The Fourth is used in other ways, too. Civil suits for wrongful search and deterring the police from conducting illegal searches in the first place, for example.

    With all that said, I agree that the Fourth isn’t as strong as it should be. I also think the exceptions should be narrowed. My point is, and has been, that doomsday claims that the Fourth is “dead” are easy to see through and therefore not at all effective.

    Let’s discuss specifics, sure. But saying that the rule doesn’t do *anything* anymore just isn’t true and doesn’t help make it better in anyway.

  10. Postoldgreek

     /  April 23, 2010

    Andrew, you speak about the exclusionary rule as if it’s a godsend. IMHO, it’s a pitiful cop-out compromise. If we really wanted to uphold the 4th to its word, not only would a judge immediately invalidate the warrant, but then the police could be sued for theft and criminally charged.
    As someone who had his computers seized six months ago and the police are refusing to return them, I can testify to the actual material loss I’ve incurred due to this theft.

  11. Postoldgreek, I’m under the impression that you can, in fact, sue for a violation of the Fourth Amendment under the Civil Rights Act (section 1984?). Is that incorrect?

    And you could certainly sue for declatory relief to have property returned to you if it was seized improperly. And I think you know that criminal charges would be (a) never actually authorized and (b) not a good remedy. Generally speaking, police officers who conduct illegal searches are acting under the instruction or at least pressure of superiors. The proper remedy in most illegal search instances is against the state, not the police officers.

    And prosecutors would never authorize criminal charges anyways, except in egregious cases where they already can.

    So, I’m not sure how a stronger 4th Amendment would solve any of the problems you’re complaining about.

    • You keep missing the point.

      The problem isn’t with the 4th Amendment. The Amendment’s just fine. The problem is with its application. The courts have created so many exceptions to it that officers can pretty much do whatever they want with impunity. And where they don’t have impunity, they generally have immunity so that the theoretical lawsuits (that’s Section 1983, not 1984) for invasion of civil rights are nearly impossible to win even in the face of gross violations.

      Need an example. Look at the case of Savana Redding. She’s the girl who was strip searched by her school because it was alleged (falsely as it happens) that she might have possessed a Tylenol.

      She sued and won. The case went all the way to the Supreme Court which said (and I’m summarizing now, but you can read the whole opinion), Gee, it’s too bad. Your civil rights were violated by that unconstitutional search. But you know, the school officials who did that too you couldn’t have known with 100% certainty that we’d say it was unconstitutional, so you can’t recover any damages and your lawyers don’t get any attorney fees and, well, life’s tough. You probably shouldn’t have let yourself get falsely accused like that.

      Again, it’s not the Fourth Amendment that needs to be fixed. It’s the application.

  12. Quixote: the thing is, as I’ve said, I don’t disagree with you. I’m familiar with Safford v. Redding, and I agree that qualified immunity in that case was a bad application. I don’t and haven’t disagreed that there should be more restrictions on searches. All I’m saying is that your claims that the current state of the law provides no protection are clearly false and don’t actually help to solve the problem.

    What we need is not to invalidate a century of law and start over, as your claims suggest. We need to work with what we have and improve it. Unbelievable claims that it’s worse than it is won’t fix anything.

    And sorry for mixing up 1983 and 1984. I’m on a mobile device right now and didn’t have time to look it up.

  13. Ishmael

     /  April 23, 2010

    Why do you guys care whether Andrew gets it, agrees with you, or comprehends any of this? You’re putting in an awful lot of work for nothing. Unless he’s Nino Scalia slumming, what difference does it make whether one goofball commenter understands what is universally understood by those engaged in criminal law? He’s too far behind the learning curve, and unwilling to do his own legwork, to be worth this much effort. Spend your time on something more worthwhile.

    • Ishmael,

      It’s universally understood that current Fourth Amendment law does absolutely nothing to prevent any searches? If that’s true, then those engaged in law are universally deluded.

  14. The original author and commentators here may be interested in the decision by the DC Circuit in U.S. v. Debruhl, refusing to apply the good faith exception that searches committed prior to Arizona v. Gant but which are illegal under Gant (which narrowed the exception for vehicular searches incident to arrest).

    Opinion is available here:

  15. MailDeadDrop

     /  April 26, 2010

    I think you’re missing the point Andrew. The D.C. Circuit decision doesn’t need Gant. They affirmed the suppression because the good-faith exception could not be applied because the officers lacked settled case law which matched the significant facts of Debruhl’s arrest. Quote:
    Therefore, if Debruhl’s counsel had litigated his motion to suppress before Gant was decided, counsel might well have persuaded the Superior Court, and then this court, that on the facts here the law was unsettled in this jurisdiction; that Staten and Harris were therefore not controlling; and that in light of the case law from other jurisdictions reflecting Chimel’s limitation on Belton’s reach, Belton should not be read to permit the search of Debruhl’s car. (In this hypothetical case, of course, as explained in Part IV., the officers would have relied on a mistake of law, and the good-faith exception would not have applied.)
    End quote.
    It’s not that the search of Debruhl’s car was illegal because of the later SCOTUS Gant ruling, but that it was illegal because of existing law at the time of the arrest under Belton and Chimel.

  16. Is Affirmative Links still going?

    • jamie

       /  July 16, 2010

      Yeah, it’s kind of hard to tell, I know. I’m gonna try to start posting to it again, we’ll see…

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