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In the United States, all governmental law enforcement agents, whether federal, state, or local, must comply with the Fourth Amendment’s search and seizure requirements. Unfortunately, those requirements are often unclear, and there is no consensus about the analytical method for determining them. One option is historical analysis, and the United States Supreme Court has increasingly employed it. However, there are significant differences between the law of police searches today and what existed at the nation’s founding, and even the Court itself has resisted the consequences of more fully returning to a historical model. This resistance results from one of the great challenges in Fourth Amendment law, which is how to balance conflicting and likely irreconcilable imperatives, such as retaining a historical model in light of social, cultural, and technological change, or limiting governmental discretion or power in a time of increased interest in preventative policing and searching.
This research paper covers only that part of Fourth Amendment law that applies to governmental agents engaging in search and seizure activity for traditional criminal law enforcement purposes. For ease of reference, such agents will be referred to as “law enforcement” or simply as “police.”
Fourth Amendment law as we know it today did not exist for the first century of our nation’s existence, despite that search and seizure issues have been at the forefront of public concerns since colonial times. It was not until Ex Parte Jackson, 96 U.S. 727 (1877), that the Supreme Court considered the Fourth Amendment in a substantive (albeit brief) way, and the Court did not significantly discuss it until Boyd v. United States, 116 U.S. 616 (1886). During the preceding period, search and seizure issues were litigated through common law trespass claims, and partly for this reason, the Fourth Amendment came to be viewed through a property law lens.
As for the scope of its protection, for most of our nation’s history, the Fourth Amendment bound only the federal government. This is because the Bill of Rights, of which the Fourth Amendment is a part, was originally understood to limit only federal power. During this period, the Fourth Amendment was technically inapplicable to non-federal actors, such as state or local police, whose actions were constrained only by state and local law. The reason why the Fourth Amendment applies to state and local police today is that the Supreme Court, in the mid-1900s, ruled that the Fourteenth Amendment’s Due Process clause made the Fourth Amendment binding against the states (Mapp v. Ohio, 367 U.S. 643, 1961; Wolf v. Colorado, 338 U.S. 25, 1949).
The Fourth Amendment did not become an active subject of Supreme Court litigation until Prohibition, which had resulted in a large expansion in both federal law enforcement and its search and seizure efforts. Even then, the property-based focus persisted, despite the pressure that technological change was exerting on the jurisprudence. In Olmstead v. United States, 277 U.S. 438 (1928), for example, the Court rejected a Fourth Amendment challenge to the wiretapping of telephone conversations, emphasizing that the wiretapping was accomplished “without trespass upon any property of the defendants.”
As time and technology advanced, however, concerns about the government’s investigatory and surveillance powers continued to increase, to the point where the Supreme Court finally expressed dissatisfaction with the property model and introduced a privacy model in Katz v. United States, 389 U.S. 347 (1967), which held that electronic eavesdropping from the exterior of a telephone booth constituted a search subject to Fourth Amendment protections. Since then, Katz and its privacy model have served as the touchstones for all Fourth Amendment law. This dominance, however, may be ending. Recently, in United States v. Jones, 132 S. Ct. 945 (2012), the Court clarified that both a privacy model and a property-centric trespass model are available bases upon which to claim Fourth Amendment rights.
In addition to the privacy/property dichotomy, the other debate that has strongly influenced Fourth Amendment jurisprudence concerns the relationship between its two clauses, the Reasonableness and Warrant Clauses. Through the 1960s and into the 1970s, the Court often engaged in Warrant Clause-primacy, in which reasonableness under the opening clause was determined in light of whether a valid warrant had been obtained. This approach underlies the ubiquitous formulation that searches and seizures are per se unreasonable when unsupported by a valid warrant, except in certain carefully limited exceptions. Starting in the 1980s, this approach has tended to give way to Reasonableness Clause-primacy, in which the ultimate touchstone of Fourth Amendment constitutionality is whether the governmental conduct at issue was reasonable. Under this view, the ultimate question of reasonableness need not, and indeed often is not, determined in light of whether law enforcement had obtained a valid warrant, and the Warrant Clause’s function is simply to set forth the constitutional minima for obtaining a warrant, while saying nothing about when warrants are actually required. Increasingly, the Supreme Court has settled into the pattern of generally judging the constitutionality of criminal searches under the Warrant Clause, and that of civil searches by reference to the Reasonableness Clause.
Fourth Amendment jurisprudence in general, and that part which governs police searches specifically, is often criticized for lacking coherence. A great deal of that criticism stems from disagreement among Supreme Court justices about whether to apply a privacy or property model, whether to proceed from Reasonableness Clause primacy or Warrant Clause primacy, and from disputes about how to do so once those choices are made. One evident dynamic is that Warrant Clause-primacy has often resulted in increasing Fourth Amendment protections from governmental searches – and concomitantly greater restrictions on police search power – both on a substantive basis and because it results in clearer standards against which to gain suppression of evidence. A challenge to moving toward a Reasonableness Clause approach is assuring a sufficiently high threshold of protections against governmental searches and seizures and assuring sufficient coherence and predictability in the jurisprudence so that it amounts to more than merely the subjective reaction of the judicial officer reviewing a given Fourth Amendment issue.
The Fourth Amendment’s text explicitly mentions both searches and seizures. But the Fourth Amendment does not cover all searches and seizures, only those performed by governmental actors – such as all police searches – or by private actors but in mere acquiescence to governmental authority. Thus, for example, a spouse or landlord acting in a voluntary, private capacity is free to engage in search and seizure behavior that would violate the Fourth Amendment had it been engaged in by police and then share the results with police. That person’s conduct might violate some other body of law, such as tort law, but it will not amount to a Fourth Amendment violation because it is private, not governmental, conduct.
The next issue in any Fourth Amendment challenge to police conduct is whether it amounts to a “search” or “seizure” covered by the Fourth Amendment. There are two search tests. Katz is ubiquitously understood as having established a two-factor privacy test for a search: a Fourth Amendment search occurs only if the target had (1) an actual, subjective privacy expectation and (2) an objective privacy expectation that society accepts as reasonable. Recently, Jones engaged in a historical analysis to clarify that an alternate, property-based search test continues to exist as well: a Fourth Amendment search occurs when (1) government physically trespasses (2) for the purpose of collecting information (3) upon an enumerated Fourth Amendment item (i.e., “persons, houses, papers, and effects”). Either Katz’s privacy-based search test or Jones’s property-based one or both may be invoked when seeking Fourth Amendment protection. (When property is involved, the seizure standard is whether government has meaningfully interfered with a possessory interest (Soldal v. Cook County, 506 U.S. 56, 1992). Numerous seizure standards exist with regard to the detention of persons, e.g., United States v. Drayton, 536 U.S. 194 (2002); United States v. Mendenhall, 446 U.S. 544 (1980); Terry v. Ohio, 392 U.S. 1 (1968). Because this research paper is devoted to police searches, it will not consider seizures in any detail.)
Once it has been established that a Fourth Amendment “search” has occurred, the next question to be determined is what conditions the Fourth Amendment imposes for the search to be constitutional. It is at this stage that a great deal of complexity and ambiguity exists in Fourth Amendment jurisprudence.
Many police searches are assessed under the Warrant Clause. Consequently, often, the next inquiry is whether a valid search warrant was obtained and, if not, whether a valid exception to a warrant requirement existed. The Fourth Amendment’s text imposes only three requirements for a valid warrant: (1) probable cause, (2) particularity, and (3) oath or affirmation. Of these, most commonly disputed is whether probable cause existed, though such challenges have been less likely to succeed since Illinois v. Gates, 462 U.S. 213 (1983), because it imposed a practical, commonsense, nontechnical totalityof-the-circumstances test. To a lesser extent, particularity is also sometimes disputed. Though not explicitly specified in the Fourth Amendment, the Supreme Court has also imposed a judicial preclearance requirement for warrants. It mandates that police, when applying for a search warrant, explain the factual basis upon which probable cause is claimed to exist such that a neutral and detached magistrate can make an independent determination of whether it, as well as the particularity requirement, is satisfied prior to issuing the warrant (Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 1979; Giordenello v. United States, 357 U.S. 480, 1958; Nathanson v. United States, 290 U.S. 41, 1933; Byars v. United States, 273 U.S. 28, 1927). Search warrants can also be subject to other, nonconstitutional requirements, like those in Federal Rule of Criminal Procedure 41, or in relevant statutes such as those that apply to certain forms of electronic surveillance.
Though it sounds odd, Warrant Clause primacy need not result in imposition of a warrant requirement, strict application of which is incompatible with the realities of quotidian police duties. Often, police are called upon to respond to quickly developing situations, and they could not perform their jobs and adequately protect public safety if required to obtain a warrant prior to intervening. Traffic stops, for example, could not possibly comply with a warrant requirement. As a result, the presumptive warrant requirement quickly began developing exceptions. Though these are claimed to be “carefully delineated,” many commentators and at least one Supreme Court justice believe that the list of exceptions is now so broad as to have swallowed the rule (California v. Acevedo, 500 U.S. 565, 1991; Scalia, J., concurring).
Of such exceptions, an important one is that seizures can be made based upon only probablecause, with the scope of the seizure (e.g., its duration) being limited by the nature of the probable cause. Traffic stops provide an example. This probable cause standard is considered to be consistent with Warrant Clause primacy given that “probable cause” appears in that clause. Because no warrant is required, this probable cause standard is not subject to judicial preclearance. A probable cause challenge can be raised after the search, however.
Police searches can alternately be analyzed under the Reasonableness Clause. A prime example is police stop-and-frisk activity, which the Supreme Court allowed in Terry based upon reasonable suspicion, which is a lower suspicion threshold than probable cause. The move away from the Warrant Clause in favor of the Reasonableness Clause resulted in greater flexibility, allowing the Court to evade an otherwise applicable probable cause requirement. Stops and frisks are comprised of an initial seizure and search encounter (the stop) and may be followed by a second, more intrusive search (the frisk). The stop requires reasonable suspicion that a crime may be afoot and justifies police in detaining (seizing) an individual and engaging in investigatory questioning (a limited search). Frisk authority, because it is more intrusive, does not automatically follow from the stop, but instead requires reasonable suspicion not just of a crime but also of danger. The greater discretion that stop-and-frisk authority provides police has often caused it to be highly controversial and has contributed to claims of abused police authority and to distrust of police, particularly in lowincome or minority communities.
There are many circumstances in which police may search based only upon probable cause or reasonable suspicion, and sometimes, no suspicion at all. Many of these circumstances can be grouped under the umbrella category of exigency, and they include hot pursuit, the automobile exception (which allows automobiles to be searched based upon only probable cause), and the searchincident-to-arrest doctrine (which, after an arrest, allows an immediate search of the arrestee as well as the “grabbing area” around him).
Two doctrines that allow police to engage in suspicionless searches, but do not fall under the exigency rubric, are plain view searches and consent-based searches. Plain view searches comply with the Fourth Amendment when police are lawfully in the place from which they observe an item whose incriminating character is immediately apparent. Thus, due to the plain view doctrine, a valid traffic stop can result in a much more serious criminal prosecution if police see illegal drugs in open view inside the vehicle. Consent-based searches are discussed in greater detail below.
Key Issues And Controversies
Role Of History: Limited Vs. Big Government, Urbanism, And Prohibition
Though the Supreme Court has increasingly called for giving greater weight to history in Fourth Amendment analysis, the utility of history as an analytical tool is actually quite limited because the modern world bears little resemblance to the world that existed at the nation’s founding, and consequently, many policy imperatives have changed over time, sometimes completely reversing course. For example, the historical record is quite clear that, at nationhood, the primary Fourth Amendment goal was to constrain governmental search discretion. By contrast, Fourth Amendment jurisprudence today is designed to extend tremendous discretion to governmental searchers. Another reason why history is of limited utility is that, although widespread agreement exists about many of the relevant historical data points, radically different opinions exist about the implications of that history.
When considering history, Anglo-American history naturally dominates. At the nation’s founding, constraining official discretion was an understandable goal given colonial history, which included complaints and, especially, extravagant rhetorical warnings that royal agents were infringing or would infringe upon colonial rights through an overbearing search power. This search power was exercised in the customs context to enforce tax laws. An attempt to extend it to excise taxes resulted in the 1765 Stamp Act riots. The Fourth Amendment is generally thought to include the Warrant Clause to constrain search discretion by establishing demanding standards under which search warrants can issue, and thus constitutionalize a ban against “writs of assistance” (official documents that were used to enforce customs laws) and general warrants, both of which provided unconstrained discretion to the search official.
In the years after nationhood, the federal government enacted customs laws that essentially parroted the British ones that had applied to the colonies – and which colonists had protested – including with regard to search and seizure provisions. The British statutes had constrained discretion by extending immunity to the searchers if, after the search, it was determined that probable cause had existed. Federal revenue laws used probable cause in the same way.
Those aggrieved by searches had recourse through a common law trespass action or, if federal revenue laws were at issue, possibly also through a civil law forfeiture action. However, if a federal revenue law was at issue, the probable cause determination was usually taken away from a jury and reserved for a federal judge. Searches that had occurred for purposes other than enforcing federal revenue laws, such as those that we think of today as classic police searches – searches for stolen goods, for example – were also subject to a legal regime that sought to constrain discretion through a combination of warrant procedures and liability for unsuccessful searches. This system, however, bears little resemblance to Fourth Amendment jurisprudence today because in our early history there was no professionalized police force. Thus, investigatory and search authority was left to private parties, who could seek a search warrant and assistance from a constable or sheriff in executing the warrant. Such governmental officials who acted under authority of an ostensibly valid search warrant were immunized from damages. The private party who swore out the warrant, however, would be liable if the search was unsuccessful, which acted to constrain search discretion.
A good example of the disjunction between modern and historical approaches to Fourth Amendment law concerns probable cause. Today, probable cause is often an important mechanism for protecting the public from improper police searches. This is certainly true as to warrant-based searches and is often true with regard to warrantless searches, which often are authorized merely upon probable cause. (One important difference in how probable cause is regulated in these two situations is that, in the former, probable cause can be assessed twice, once through judicial preclearance when the warrant is applied for and again after the search during a suppression or damages proceeding, but in the latter, it is assessed only after the fact.)
But much evidence indicates that during the nation’s early history probable cause may have been a much less protective device. Though explicitly mentioned in the Fourth Amendment, when it was included there it was an immature concept that legal treatises indicated could be satisfied under conditions that would never be acceptable today, such as being a nightwalker or living an idle, vagrant, and disorderly life. Moreover, evidence suggests that probable cause played an especially important role only during federal revenue enforcement actions, where statutes used it as an immunity factor. Probable cause may have been a much less protective concept under the common law, for several reasons. It is accepted today that judges have a well-established duty to independently assess the adequacy of probable cause before issuing search warrants to police. But considerable historical evidence indicates that in our nation’s early history the validity of probable cause supporting a warrant often would have been subject only to an after-the-fact jury determination through a common law trespass action. Judicial officers who issued search warrants may often have perceived their role with regard to probable cause as being merely ministerial, such that they may have treated an assertion of probable cause as a mere pleading requirement, the validity of which a jury could later decide. Juries, however, could so decide only if a judicial challenge was brought – which was rare then, as now – and even then could have their opinion nullified by a federal judge if a federal revenue law was at issue.
Using history as a guide to current Fourth Amendment law is a challenge because so much has changed over time. The conception and importance of probable cause, and the role of the jury, are just several examples. As time has passed, the original guiding imperative of limiting search discretion has given way to a desire to greatly expand search discretion. The reasons for this switch are numerous and include the move from rural to urban populations, which increased anonymity and hence crime and resulted in the creation of modern professionalized police forces, as well as persistent advances in technology that have vastly magnified both the harm one individual can inflict and the interest in, and capabilities of, surveillance, which increase the pressure to engage in preventative searches. For example, recent research persuasively argues that the key event in transforming the Fourth Amendment law of police searches to what we have today was the advent of the temperance movement of the late 1800s, which culminated in Prohibition and a significant increase in federal law enforcement (Oliver 2011). Indeed, several Prohibition cases, such as Carroll v. United States, 267 U.S. 132 (1925), which involved automobile searches, and Olmstead, which involved wiretapping, resulted in important Fourth Amendment decisions (though later Katz famously overruled Olmstead). These changing circumstances have resulted in a desire to assure adequate governmental power to protect us from third parties, and thus the law of police searches has moved dramatically in the direction of expanding governmental discretion.
Consent, Police Intent, And Discrimination
The law of police searches with regard to consent and police intent operates to greatly expand police discretion. The premises underlying consent searches are that police should not operate at any disability as compared with a private actor and thus may seek voluntary assistance and compliance as could any private actor, and that the target has full knowledge about whether the encounter is truly voluntary or is subject to governmental compulsion (Kentucky v. King, 131 S. Ct. 1849, 2011). The latter presumption often operates to make consent-based searches controversial. For example, often there is no way for a person stopped by police on a sidewalk or in an airport or bus terminal to know whether police are acting under probable cause or reasonable suspicion, which would authorize a compelled detention. Similarly, every traffic stop at some point exhausts the probable cause justification for the seizure, but that point is often inscrutable to the driver. Thus, when a person is approached by police and asked, “Do you mind if I ask you a few questions?” or a driver is asked “By the way, do you mind if I look around?” it is often unclear whether a truly voluntary choice exists, particularly given that many jurisdictions make it a criminal offense to cut short a justified police encounter, as in the case of traffic stops. The controversy exists in large measure because the Supreme Court has ruled that consent need only be voluntary, not knowing, and thus police need not inform the target that he or she has a right to refuse consent (Schneckloth v. Bustamonte, 412 U.S. 218, 1973) or a driver that he or she is free to go instead of granting consent (Ohio v. Robinette, 519 U.S. 33, 1996).
Adding further controversy to the law of police searches is that, generally, only objective police intent is relevant to Fourth Amendment constitutionality, while subjective police intent is immaterial. Consequently, Fourth Amendment law makes it very difficult to prevail on claims of either invidious discrimination in police searches or on pretext claims such as that a minor traffic stop was really a subterfuge for forcing a police interaction (Whren v. United States, 517 U.S. 806, 1996). The Supreme Court justifies the focus upon objective intent based on ease of judicial application, a desire to treat similar police actions similarly regardless of whether different subjective motivations animated them, and the difficulty of establishing subjective intent.
Fourth Amendment consent and intent doctrines are often the source of great tension between police and poor or minority communities because these doctrines can effectively immunize police behavior motivated by actual invidious discrimination. For example, they can make it very difficult to challenge racial profiling, despite that it has been documented in traffic stops. Whether the Fourth Amendment law of police searches is properly formulated on these points is a significant issue because, by far, the greatest amount of face-to-face interaction between police and the public is during traffic stops. Thus, these Fourth Amendment doctrines are often highly criticized.
Arrest Authority And Strip Searches
Yet an additional example of the large amounts of deference extended to police under modern Fourth Amendment law is seen in the low levels of protection extended against dubious arrests and their ensuing consequences such as strip searches at detention centers. The Supreme Court has rejected a mother’s claim that the Fourth Amendment protected her from being arrested for the minor criminal offense of failing to secure herself and her two children in her pickup truck, despite acknowledging that “the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment” (Atwater v. City of Lago Vista, 532 U. S. 318, 2001). A very persuasive case has been made that Atwater is completely at odds with a historical view of the Fourth Amendment (Davies 2002). The Court has also refused to provide Fourth Amendment protections from arrests that violate state law, reasoning that Fourth Amendment and state standards are distinct and that the Fourth Amendment is satisfied so long as probable cause supported the arrest (Virginia v. Moore, 553 U.S. 164, 2008).
Arrestees are taken to detention centers, and recently, the Supreme Court has ruled that, once there, all adult arrestees may be subjected to suspicionless strip searches, including visual body cavity searches, and that the Fourth Amendment provides no protection even if the arrest was wrongful, such as because it was based upon the erroneous belief that an arrest warrant existed (Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510, 2012). The degree of deference that the Supreme Court extended to detention centers was striking because the Court could easily have endorsed a reasonable suspicion requirement for such strip searches given that a prior case, Bell v. Wolfish, 441 U.S. 520 (1979), had widely been interpreted as imposing such a suspicion threshold before arrestees – who, after all, have yet to be adjudicated guilty of any offense – could be strip searched. Substantial uncertainly exists as to whether similar institutional deference will be extended in the context of suspicionless strip searches of juvenile arrestees given that the Court has required reasonable suspicion to justify strip searches in high schools, as well as proportionality between a search’s intrusiveness and the suspected harm being investigated (Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 2009).
Surveillance And Technology
Fourth Amendment law has consistently struggled with whether, and how, to adapt to technological change. This dynamic became evident in the early 1900s as technology started rapidly advancing, which, for example, made wiretapping possible. Today, this is a consistently pressing issue given the accelerating pace of technological change, which has contributed to an increased interest in preventative searches as a result of heightened security concerns in a post-9/11 world.
The Supreme Court usually has taken a careful approach to technological development, often refusing to recognize Fourth Amendment privacy barriers to its use, though infrequently the Court has intervened even at the risk of dramatically changing Fourth Amendment law. One prominent distinction the Court has applied in Fourth Amendment technology cases is whether the technology merely involves sense enhancement or augmentation, on the one hand, or sense replacement or the use of what the Court believes is a disruptive technology, on the other.
Two of the Supreme Court’s most important Fourth Amendment rulings fell into the latter category, which shows what an important role technology has had in developing the jurisprudence. One was Katz, in which the Court adopted a privacy model, and rejected a property model, in holding that the public enjoyed Fourth Amendment protections against electronic eavesdropping. The second was Jones, a recent decision in which the Supreme Court unanimously ruled that police installation and monitoring of a GPS device upon a suspect’s vehicle was subject to Fourth Amendment oversight. Jones is significant not just for its reaffirmation that a property-based trespass model exists as a basis to seek Fourth Amendment protections (in addition to Katz’s privacy model) but also for what the concurring opinions suggest about the future direction of Fourth Amendment law in general and the law of police searches in particular.
Justice Alito wrote a concurring opinion, explaining that he would have resolved the case through a Katz-ian privacy analysis that would have focused upon objective privacy expectations. In the context of GPS technology, he would have applied two new, revolutionary factors to the objective prong: a temporal factor and an offense-specific factor. With regard to the temporal factor, he would have ruled that no objective privacy expectation exists in the context of “short-term” GPS tracking but that one does usually exist in the context of “longer term” GPS tracking. He provided no guidance as to what separates brief from prolonged GPS tracking other than to say that the GPS tracking at issue, which spanned 28 days, clearly qualified as prolonged. As for the offense-specific factor, he would have ruled that prolonged GPS tracking would violate an objective privacy expectation in the case of “most offenses” but suggested that this might not be true for “extraordinary offenses.” His discussion of the offense-specific exception indicates that it is not defined in terms of distinct offense categories. Rather, it is really a resource intensity measure, which the government can successfully invoke if it can show that it would have approximated similar surveillance results through traditional means had it not used GPS tracking, even if that meant an unusual commitment of resources. Because three other justices joined Justice Alito’s concurrence, there are at least four votes on the current Supreme Court for incorporating these two revolutionary factors into Katz’s objective privacy expectation analysis.
There also appears to be a fifth vote available because Justice Sotomayor, though she provided a fifth vote for resolving Jones on property/ trespass grounds, wrote a separate concurrence indicating that she was prepared to support Justice Alito’s privacy approach.
Significantly, she also specified that she was willing to go even further than Justice Alito in extending Fourth Amendment protections against technological surveillance, even if it meant fundamentally reforming Fourth Amendment privacy jurisprudence. Police searches often take advantage of three interrelated Fourth Amendment doctrines, all of which are closely tied to Katz-ian privacy. One is the third-party doctrine, under which exposure of information to third parties, even in instances where there is little alternative, can obviate any privacy interest and thus eliminate Fourth Amendment protections (Smith v. Maryland, 442 U.S. 735, 1979; United States v. Miller, 425 U.S. 435, 1976). Another is the assumption of risk doctrine, under which privacy interests in information can be lost when voluntarily shared with a third party because one assumes the risk that the third party will disclose the information (United States v. Jacobsen, 466 U.S. 109, 1984; Frazier v. Cupp, 394 U.S. 731, 1969). The assumption of risk doctrine is particularly useful to police in the context of informants and co-occupants (United States v. Matlock, 415 U.S. 164, 1974; United States v. White, 401 U.S. 745, 1971). Finally, some Fourth Amendment law suggests a private-versus-public space distinction, in which no privacy expectation exists as to activities conducted in public, such as movements through public spaces or roads (United States v. Knotts, 460 U.S. 276, 1983). Jones is important in part because Justice Alito’s and Justice Sotomayor’s concurring opinions could have transformative implications for these three Fourth Amendment doctrines.
Additionally, some judicial opinions assessing GPS tracking had embraced mosaic theory as a means for the Fourth Amendment to keep up with technology, and Justice Alito and the three justices who joined his opinion seem to endorse it in Jones, and Justice Sotomayor clearly embraces it. In a search and seizure context, mosaic theory posits that privacy interests should be protected in a manner that guards against collections of small bits of information that individually may not be particularly revealing but that when aggregated can reveal a great deal. Justice Alito’s temporal factor seems to implicitly endorse mosaic theory because a prime differentiating factor between brief and prolonged GPS tracking is the amount of data revealed to police. Justice Sotomayor was more direct in endorsing mosaic theory, so she clearly seems to be one available vote for importing it into Fourth Amendment jurisprudence. If these five justices are indeed willing to make this outcome law, it would significantly alter the law of police searches, at least in the context of technological surveillance.
Legislation, Technology, And National Security
In part because the Supreme Court often has been cautious in extending Fourth Amendment protections in technological contexts, the political branches have played an important role in defining the law of police searches. For example, when the Supreme Court created the third-party doctrine by ruling in Smith that there is no Fourth Amendment privacy interest in telephone numbers dialed from one’s home (because the telephone company keeps records of those numbers) and in Miller by holding that no privacy interest exists in one’s banking records (because the bank holds them), the political branches responded by creating statutory protections through passage of the Pen Register Act, 18 U.S.C. }} 3121–27 and the Right to Federal Privacy Act, 12 U.S.C. }} 3400–22. Privacy standards that the political branches have created and defined have also strongly influenced the law of police searches through the Federal Wiretap Act, 18 U.S.C. }} 2510–22 and the Stored Communications Act, 18 U.S.C. }} 2701–12. When such statutory protections exist, it is important to understand that they may not necessarily comply with Fourth Amendment standards, especially in contexts where the political branches have taken the lead. For example, currently there are numerous controversies concerning the terms under which the Stored Communications Act allows the police to access cellular and GPS location data held by third-party service providers and whether those statutory terms meet Fourth Amendment standards.
Some of the uncertainty exists because the law of police searches has been significantly impacted by national security concerns. After the September 11, 2001 terrorism attacks, for example, Congress statutorily authorized the Attorney General, through one portion of the USA PATRIOT ACT, 50 U.S.C. } 1843, to use pen registers without prior court approval in emergency circumstances relating to international terrorism and foreign intelligence. There is evidence that governmental surveillance powers that were expanded post-9/ 11 for national security purposes have been used in the domestic law enforcement arena.
Remedies: The Exclusionary Rule, The Right To Counsel, And Qualified Immunity
An important issue in Fourth Amendment law is what remedies, if any, exist for a violation of the rights conferred against governmental searches and seizures. The primary question concerns the legitimacy of the exclusionary rule: whether exclusion of wrongfully obtained evidence should be an available remedy. Textually, the Fourth Amendment identifies rights but is silent about remedies. Early on, the Supreme Court in Boyd at least presumed that exclusion was proper, and then formally adopted exclusion as a remedy for Fourth Amendment search and seizure violations by the federal government in Weeks v. United States, 232 U.S. 383 (1914). Thirty-five years later, in Wolf, the Court declined to impose exclusion as a Fourth Amendment remedy against violations by state actors, on the theory that the device by which the Fourth Amendment was incorporated against the states – the Fourteenth Amendment – did not require it, but the Court switched course 12 years later in Mapp, in part on the ground that experience had shown that exclusion was the only effective remedy.
The exclusionary rule is controversial because, as famously phrased, “[t]he criminal is to go free because the constable has blundered,” People v. Defore, 150 N.E. 585 (N.Y. 1926), and as a result, bare majorities of the Supreme Court have been on an active campaign for decades to minimize or eliminate it, as in United States v. Leon, 468 U.S. 897 (1984) (adopting good-faith exception for reasonable police reliance on search warrant subsequently held invalid), and this campaign has accelerated in the last decade. As originally conceived, the exclusionary rule was justified on the twin bases of judicial integrity and deterrence value. The campaign against it has rejected the judicial integrity rationale and has used the only remaining justification – deterrence – to require a cost-benefit analysis before wrongfully obtained evidence can be suppressed, while both emphasizing its costs and minimizing its benefits (Herring v. United States, 555 U.S. 135, 2009; Hudson v. Michigan, 547 U.S. 586, 2006).
A major debate surrounding the exclusionary rule is whether, as Mapp conceived, it is the only effective remedy for Fourth Amendment violations. Opponents of the exclusionary rule identify numerous intervening reforms since Mapp which, they assert, mean that the rule is no longer needed. They point to the increased professionalism of police forces and to federal civil rights statutes that authorize civil suits and the availability of attorney’s fees for prevailing plaintiffs, as well as to increases in the number of publicinterest law firms and civil rights lawyers (Hudson). Supporters of the exclusionary rule point to the increased professionalism and improved training of police forces as evidence of both the success and necessity of exclusion as a remedy, Herring (Ginsburg, J., dissenting), and assert that alternate remedies are not sufficiently available and successful.
In this debate, insufficient attention has been paid to the role of assigned counsel and to the impact of the qualified immunity defense. The Sixth Amendment provides a right to counsel in criminal cases involving a felony or before a sentence of incarceration may be imposed. This provision of counsel has played a singular role in the development of the law of police searches because it has guaranteed the presence of a legal professional to assess each client’s situation and to vigorously and aggressively litigate potential Fourth Amendment claims. If, however, the exclusionary rule is eliminated or so emasculated that there is no incentive to litigate such claims during a criminal trial, the development of Fourth Amendment law will greatly suffer. This is because alternative remedies to the exclusionary rule often will be more theoretical than real for several reasons. The number of public-interest law firms and civil rights attorneys available to bring such claims pales by comparison to the number of assigned counsel in criminal cases. An aggrieved Fourth Amendment claimant who cannot enlist a publicinterest law firm is left with no other choice but to hire a private attorney, but few such claimants can afford such legal representation. This representation deficit is further exacerbated by the lack of meaningful damages that would be available in most civil cases – particularly where the client was held guilty in the criminal proceeding – and by the difficulty in collecting statutory attorney fees in civil rights cases, a difficulty that has been magnified through rulings spearheaded by many of the same Supreme Court justices who are hostile to the exclusionary rule and point to such attorney fees as an alternative.
The qualified immunity defense also has a significant role in limiting the effectiveness of remedies other than the exclusionary rule. The qualified immunity defense protects police from civil suits for damages when a constitutional right has been violated but was not clearly established at the time of the violation. The law of qualified immunity is often extremely generous to police – again often through efforts by the same group of Supreme Court justices who oppose the exclusionary rule – which often makes it difficult to win on claims that a constitutional right was clearly established. This can be particularly ironic because, though the Court has increasingly insisted that historical analysis should play a leading role in Fourth Amendment law, the Court has at the same time rejected the relevance of historical Fourth Amendment analysis when it would operate to defeat a qualified immunity defense (Anderson v. Creighton, 483 U.S. 635, 1987). This rejection is significant because the common law of search and seizure was often quick to impose liability upon a government official who acted improperly.
Fourth Amendment law in general, and as it applies to police searches in particular, is at a crossroads. Though recently the Supreme Court has given more emphasis to historical analysis, in reality the Court’s record in aligning modern Fourth Amendment law with the historical law of search and seizure is poor.
This outcome was foreordained because circumstances have simply changed too dramatically for a historical model to dominate. A good example of why can be seen in the advance of technology, which forces a Fourth Amendment reckoning absent any historical analogue. Moreover, technology also puts pressure on the core Fourth Amendment protective concept upon which we have relied – prior suspicion. Prior suspicion has come to occupy pride of place in Fourth Amendment law because of history. Historically, suspicion was the primary concept used to restrict search discretion, which was the overarching goal for which the Fourth Amendment was adopted. For more than a century, suspicion fulfilled this function well. At the nation’s founding, the world was simpler and in that context suspicion was a particularly useful mechanism for limiting governmental power and discretion. As time advanced, however, circumstances changed and the world became increasingly complex and interconnected – for example, life in the United States moved from an agrarian to an urban existence, and technological advances accelerated – and consequently suspicion became less protective. This dynamic can be seen in the evolution of Fourth Amendment law, which started from a presumptive warrant requirement, then began departing from that requirement and instead relied more often only upon probable cause, and then in Terry created an exception to even probable cause through the creation of a less demanding reasonable suspicion model. Technological advances continue to put pressure upon suspicion because they increase the ability to engage, and interest in engaging, in preventative searches, such as through various forms of electronic surveillance.
Therefore, a significant challenge that currently exists in Fourth Amendment law, including with regard to police searches, is how to assure adequate search and seizure protections when suspicion can no longer play the protective role that it once did. This crisis comes with a benefit – the opportunity to expand and reassess our thinking about the Fourth Amendment – but it is one that must be embraced and pursued. Doing so requires the recognition that suspicion is not alone sufficient to assure a search’s constitutionality because the Fourth Amendment protects a host of values, and suspicion protects only some of them. A search can be unconstitutional under the Fourth Amendment for many reasons. It might have been overly invasive or intrusive, the governmental interest being pursued might not have been sufficiently compelling, the search target’s privacy interests could have been so substantial as to render the search illegitimate, or the search may not have been sufficiently efficacious or had sufficient deterrence value to justify the measures employed. Such interests are ones that the Fourth Amendment protects, but that suspicion does not. Thus, one avenue that might beneficially be pursued is to reform the Fourth Amendment law of police searches to more precisely and distinctly identify and consider the varied and multiple interests that the Fourth Amendment protects in various circumstances and ask whether the police conduct adequately respected them given the circumstances.
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