The Supreme Court took on five Fourth Amendment cases this term. Four have been decided, and the fifth was argued on Tuesday. Although it may be premature to do so before the last decision comes down, we think it’s safe to draw some conclusions about the Court’s jurisprudence here, and predict what it might mean for the course of criminal justice.
The Fourth Amendment protects citizens against unreasonable searches and seizures. Like most other protections in the Bill of Rights, the whole point is to ensure that the State does not use its awesome power to override the necessary liberties and free will of individuals in a just society. The Bill of Rights prohibits the government from limiting ideas and their expression, from preventing individuals from arming themselves, from forcing soldiers into people’s homes, from extracting confessions by means that override the individual’s free will, from conducting secret “Star Chamber”-like trials or otherwise deny fair trials to defendants, from imposing indecent punishment, etc. If you sum up all the injustices that individuals face under medieval or tyrannical rule, the Bill of Rights pretty much says the U.S. government shall not do such things.
“Unreasonable” search & seizure basically means that, as a baseline, police ordinarily need to get a warrant first, by proving to a judge that they are more likely than not to find what they’re looking for, and that they’ll find it in the place they plan to look. There are exceptions to the warrant requirement, of course. Most searches don’t take place pursuant to a warrant, but under one of the exceptions.
If a person consents to a search, then no warrant is needed. Neither is a warrant needed if there is good reason to believe that evidence is going to be lost, or someone’s going to get hurt, if the cops take the time to get a warrant. There are various other exceptions.
The devil is in the details, of course. So the more exceptions you carve out from the general rule, the more room for error you create, and the more gray areas of confusion can pop up. Over the past few decades, various Fourth Amendment exceptions have indeed created confusion, gray areas, and absurdities.
The Supreme Court has taken the opportunity this term to attack those confusions, gray areas and absurdities head on.
On Tuesday, the Court ruled in Arizona v. Gant with respect to vehicle searches. (We reported on this here.) Back in the 60s, a warrant exception was carved out for searches of an individual and his “wingspan” — the area in his immediate reach — pursuant to a lawful arrest. The purpose was to ensure the safety of the officers and to preserve evidence. So long as the arrest was lawful, the search was lawful. Fast-forward to just after Reagan’s first swearing-in, when the Court expanded the search-incident-to-lawful-arrest to include the search of the passenger compartment of a car in which the arrestee had been riding.
Almost immediately after that ruling, everyone started to get the idea that cops could search the passenger area even after everyone was out of the car. The “wingspan” concept was lost, and instead a bright-line rule arose that, if the cops arrested someone who had been inside a car, then that car could be searched, period. Even after that person had long ago left the scene.
Some policy-makers like bright-line rules, because they require no thought. Individual circumstances need not be considered. An action that might not make sense, upon casual reflection, is still taken, because that’s the rule. If you don’t trust people to be able to weigh circumstances reasonably, then you give them bright-line rules.
And so it was that the police in Gant found themselves searching his car. Gant had already been arrested, handcuffed, and locked in a police cruiser, so the interior of his car was certainly no longer within his reach. So there was no reason to believe that he could destroy any evidence in the car or use something in the car to hurt the police. And he had been arrested for driving with a suspended license, not the kind of crime involving physical evidence, so there was no reason to believe that any evidence of that crime would be found in the car. In fact, the cops admitted on the stand that the only reason they search the car after the arrest was “because the law says we can do it.”
That was absurd. It’s an absurdity that just sort of happened, too. Nowhere in the 1981 Belton case did the Court lay out a bright-line rule. But that rule became the common interpretation, and has been the common interpretation for a quarter of a century.
On Tuesday, however, the Court finally stepped in to undo the absurdity. In a narrowly split 5-4 decision, the Court ruled that the police are not allowed to search a car simply because they made an arrest. The bright-line rule was thrown out the window. Interestingly, the case made for strange bedfellows. Contrary to popular expectation, Scalia and Thomas joined the pro-defendant side, and Breyer joined the pro-government minority. Scalia, in fact, felt that the majority opinion didn’t go far enough to limit the government’s power to search a car after an arrest.
The dissent essentially boiled down to a version of stare decisis — the common interpretation has been around for so long, that it has become the law of the land, and should be treated as such. That’s an interesting, but flawed, rationale. Stare decisis has to do with longstanding judicial precedent, not with some sort of jurisprudential adverse possession. Common practice does not equal legal precedent. Just because nobody has bothered to claim till now that the common interpretation was wrong, that doesn’t mean that nobody ought to be able to claim that now.
Anyway, the rule now is that the bright-line rule is no more. Cops can only search the passenger compartment if they have reason to believe — on a case-by-case basis — that the arrestee can still gain access to the car or that the car contains evidence of the crime for which he had been arrested. They can’t go looking just because the guy was arrested. They can’t go looking for evidence of other crimes. (They can still, however, either get a warrant, or impound the car and do an inventory search.)
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Argued the same day as Gant was decided was Safford Unified School District v. Redding. This also has to do with bright-line rules, in a way.
For context, the oral arguments were made almost to the day on the 10th anniversary of the Columbine shootings. Ten years ago, a couple of juvenile delinquents killed 12 people in a high school, the worst such violence that the U.S. has ever seen.
Due to the resulting hysteria and misinformation about the events, schools nationwide began passing bright-line “zero tolerance” rules out of fear that similar crimes might happen to them. Although it is now known that the killings were totally random, there arose a misconception that the killers sought out specific categories of victims. This led to panicked overreaction whenever a kid was found to have identified people in the school that they didn’t like. In fact, the killers wanted to kill everyone, setting (faulty) bombs to go off in the cafeteria (the fact that nobody every mentions the totally obvious similarities to the plot of the 1988 movie “Heathers” is beyond us).
Zero tolerance policies resulted in the expulsion of even little kids for bringing anything remotely resembling a weapon to school. Even when doing so was clearly absurd, as with water pistols, plastic army men, miniature toys, eating utensils, and the like.
Zero tolerance policies went after anything that might even slightly imply to the most paranoid hysteric an imaginary threat of unlikely harm to students or teachers. This included little girls hugging (because touching without permission can sometimes be a bad thing, all touching must be bad!). It included bringing a cake knife to school to cut a cake one had also brought to school.
And drugs are bad, by definition. So zero-tolerance included bringing any drugs to school. Passing out Tylenol can get kids expelled. It’s serious!
These bright-line zero-tolerance rules are imposed because school administrators are afraid. They’re afraid of their students. And they’re afraid of having to act rationally on a case-by-case basis. So they just over-react to everything, and establish bright-line rules so they don’t have to think.
And so we have Safford Unified School District v. Redding.
In Safford, we have a middle school (also in Arizona), where school authorities caught a 13-year-old girl with (gasp!) prescription-strength ibuprofen. This was a zero-tolerance school, and even though there is no way that ibuprofen counts as a dangerous drug, it was a bright-line prohibited medicine. So this girl was in serious trouble.
The girl (gasp!) pointed the finger at someone else. She said that another girl, Redding, had given her the medicine.
School officials have the authority to preserve the health and safety of their students. Most would say they even have the responsibility to do so. So it is not suprising that the school investigated the culprit’s claims.
Without taking the time to get a warrant, and acting only on the say-so of the girl they actually caught with the medicine, school officials searched Redding’s backpack, and found nothing. Then they took Redding to the nurse’s office, and searched her outer clothing. Nothing. Then they had her stretch out her bra and panties, exposing her breasts and genitals. Nothing. They shook out her underclothes, and her body was inspected by the nurse and another school official. Nothing. Then they put her in the principal’s office, and left her there alone for a few hours, without calling her mother or anyone else. No drugs of any kind were found during all this searching, and nobody else was strip searched.
Redding sued, claiming that her Fourth Amendment rights had been violated when she was subjected to this strip search.
The school district seeks a bright-line rule that permits strip searches whenever a school has reason to suspect that a student has prohibited contraband on them. At the same time, and without appearing to notice the inherent hypocrisy, they argue that the courts should not second-guess the judgement of school officials. Here, they had a reason to suspect Redding, and that should be enough to let them strip search her.
Now, if the Court is inclined to lay down a bright-line rule at all here, that surely is not going to be the rule they impose. There is no way the Court is going to let school officials make an unreviewable decision as to whether there’s reason to conduct a given strip search or not.
Instead, they’d probably impose a bright-line rule requiring first that there be sufficient credible evidence — first, that this student has drugs in the first place; and second, that the drugs are concealed in the private regions of the student’s body.
But then, in addition to an evidentiary requirement, they’d probably have to include a proportionality requirement as well. The Court is unlikely to permit extraordinarily invasive searches for contraband that poses no real threat. Strip searches for plastic toys would be within the realm of lawful possibility, otherwise.
But if your bright-line rule requires weighing evidence on a case-by-case basis, and weighing proportionality on a case-by-case basis, then it really isn’t a bright line at all, is it?
No, we’re going to go out on a limb here and predict that the Court will reject any bright-line rule, and instead impose a balancing test. A good rule will require that strip searches are only allowed when there is credible evidence that the student is concealing contraband in or on her private body parts. Not just the say-so of another student trying to direct blame onto someone else.
And a good rule will require that a strip search be proportionate to the danger. It’s more reasonable if the kid’s believed to have explosives strapped to his body (a la Christian Slater in “Heathers”), or a weapon in his underwear, or decks of heroin in his nether regions. It’s not so reasonable if the kid’s only believed to possess a toy, or harmless medicine, or even a list of kids he doesn’t like.
A good rule will be fact-specific, and will require schools to actually exercise good judgment. A rule that lets them just act without thinking would be contrary to the direction this Court seems to be taking with its Fourth Amendment cases.
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That leads us to the third Arizona case in this term’s Fourth Amendment decisions. On January 26, Justice Ginsburg wrote a unanimous decision for the Court in Arizona v. Johnson (which we wrote about here).
In Johnson, the Court clarified that a police officer can do a pat-down search, feeling someone’s outer clothing for weapons, if the officer has reason to believe that the person is armed and poses a threat to safety. The police don’t lose that ability to protect their own safety when other circumstances change.
Ginsburg pointed out that this really shouldn’t have been a point of confusion. A long line of cases, starting with Terry v. Ohio, clearly say cops can pat someone down for weapons if they have reason to believe the person’s armed and dangerous. And yet there obviously was confusion, evidenced by the Johnson case itself.
In Johnson, a female officer with gang experience was involved in a traffic stop. Before the stop, she had no reason to believe the passengers had committed any crimes. But during the stop, she saw things that led her to believe that one of the passengers was a gang member. She talked to him about things unrelated to the reason for the traffic stop, and some of the things he said led her to believe that he was armed and dangerous. So she asked him to step out of the car, to talk about things out of earshot of the other suspected gang members, then patted down his clothing and found a gun in his waistband. The passenger was later convicted of possessing the gun.
The Arizona Court of Appeals ruled that the officer lost her authority to pat him down once she started talking to him about matters unrelated to the traffic infraction. Even though she had reason to believe he was armed and posed a threat to her, the fact that she had talked to him about other things erased her ability to pat him down for her own protection.
The unanimous Supreme Court cleared that right up. The passenger was already seized, and not free to leave. The fact that he was being asked questions about other things didn’t change that. And the officer did have reason to suspect that he was armed and dangerous, and the topic of conversation didn’t change that.
Now in one respect, this is a bright-line rule. And as we pointed out in our previous post, we have problems with this bright-line rule, insofar as it has to do with whether a person involved in a traffic stop is free to leave. Under the Court’s rule, the answer is simply no, until the stop is over or the police let him go.
But the meat of the decision is not a bright-line rule. It is yet another case-by-case analysis: did the officer have reason to believe there was a weapon and that she could be in danger? The ruling simplifies the analysis by removing other considerations from the equation, as being irrlevant. The bright-line issue of whether someone is seized or not really has nothing to do with the core issue. And the Arizona court’s issue of whether the conversation has switched topics is beyond irrelevant.
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The fourth case this term was Herring v. United States, which had to do with the exclusionary rule. (We wrote about this decision here.)
In Herring, the Court ruled that the exclusionary rule doesn’t apply when a policeman acts on flawed information from law enforcement in the next county. Herring, a character who’d had several run-ins with local law enforcement in Alabama, went to get his truck out of impound. The officer ran a check to see if any warrants were outstanding for him. There was a hit for an outstanding warrant in the next county. Herring was arrested on that warrant, and drugs were found. It turned out that the neighboring county’s records were erroneous, and there wasn’t any warrant.
Writing for the narrow 5-4 majority, Chief Justice Roberts ruled that the error was too separate from the search and seizure of the drugs. The officer who conducted the search didn’t have anything to do with the error, and it would be pointless to attribute it to him. Thinking of the exclusionary rule as a rule of deterrence, Roberts said it should only apply when excluding seized evidence would deter wrongful conduct. So the police conduct would have to be sufficiently deliberate that it could be deterred. And the conduct would have to be sufficiently wrongful to be worth the loss of evidence.
It’s easy to see where the majority was going here. It’s common for people to think of the exclusionary rule as balancing, on the one hand, our concern for protecting individuals against unlawful government intrusions, against our concern against “letting people off on a technicality” on the other hand. So here, the arresting officer wasn’t being negligent. He acted totally reasonably, relying on a criminal justice database. Excluding this evidence wouldn’t deter future reliance on criminal justice databases, and we actually don’t want that kind of reliance to be deterred in the first place.
But that common way of thinking really is a misconception. The exclusionary rule is not a rule of deterrence. And thinking of it that way can lead to confusion.
The exclusionary rule is the typical remedy for police violation of Fourth Amendment rights, by suppression of the evidence that would not have been gathered but for the violation. This protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence.
Police officers and departments are not punished for violations, because that would be deterrent — it would create an incentive to avoid borderline situations where evidence could have been obtained lawfully.
Rather than do that, the exclusionary rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get, the evidence they got by crossing the line. The get to keep the other evidence.
The exclusionary rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time, and the Supreme Court itself did so here.
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The last case is Pearson v. Callahan, decided on January 21. It involved Utah police officers who conducted a warrantless search of a home. There were no exigent circumstances. Instead, they thought their conduct was lawful under the “consent once removed” doctrine.
This is a legal doctrine that had been gaining traction out west (and in New Jersey) since the early 1980s. The way it worked here was, they flipped a suspect into an informant. Then they sent the informant to his drug spot, the defendant’s home. The informant was invited in, saw drugs, and went back to tell the cops what they’d seen. The defendant had consented to allow the informant into his home, and that consent was deemed transferred to the cops, as “consent once removed,” and so the defendant was deemend to have consented to the police entry into his home. Under that doctrine, he’d consented, so they didn’t need a warrant.
The cops were sued, and the issue was whether they had qualified immunity here. The Court’s unanimous decision, written by Justice Alito, mostly dealt with a procedural issue raised sua sponte. But in the end they briefly mentioned the underlying issue of whether the police acted lawfully here.
The test for qualified immunity was whether the unlawfulness of the officers’ action was clearly established at the time of their actions. If it was clearly unlawful, then they did not have qualified immunity.
As it happened, however, there was a line of cases that instead established that this kind of “consent once removed” search was fine back in 2002, at least out west. So the police were entitled to qualified immunity.
Disappointingly, the Court did not deal with the issue of whether this kind of attenuated consent is actually proper now in 2009. So there’s really no meat to this decision, which is why we saved it for last.
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All in all, it looks like the Court is shying away from any judicial activism here. Rather than creating broader interpretations of individual rights, or establishing greater police powers, the Court is focusing on clarifying existing rights and powers. And instead of expanding the existing rules, the Court is simply trying to rein in misconceptions and absurdities.
Part of that trend seems to be the relaxing of bright-line rules. Bright lines are great when you don’t want people to have discretion, when you don’t trust them to think, or they’re not trained to understand the issues. You get some efficiency that way. But in real life, facts don’t always fit within those lines, and an unthinking application of bright-line rules will sometimes result in injustice. This Court seems to be moving away from the seeming mass efficiencies, in favor of individual justice.
Well, we like that very much.