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Virginia v. Moore and the Changing Role of the Fourth Amendment:
In this post, I want to argue that yesterday's decision in Virginia v. Moore hides a fascinating clash: a clash between the mindset and assumptions of the pre-incorporation Fourth Amendment and the mindset and assumptions of the post-incorporation Fourth Amendment we have today. My claim is that the basic assumptions of the post-incorporation Fourth Amendment are now so deeply engrained in the Justices' consciousness that they didn't appreciate how their decision was inconsistent with pre-incorporation Fourth Amendment history. This doesn't mean that Moore was wrongly decided: The majority's rule is a sensible one for the modern incorporated Fourth Amendment. But there's a fascinating historical tale to be told about the nature of constitutional change that I think the opinions in Moore have missed. Or so I will argue; I'm not completely sure I'm right, but if not I would be very interested in knowing where my analysis goes off course.

  First, some background. As originally enacted, the Fourth Amendment only applied to the federal government and not the states. Most states had their own rough equivalents to the Fourth Amendment in their state constitutions, but the federal Fourth Amendment only applied to federal agents. At the same time, federal law enforcement was almost completely unknown until the Prohibition era in the 1920s, meaning that for the first 130 years or so of American history the Fourth Amendment was on the books but was rarely invoked and its meaning was largely unknown.

  That picture changed dramatically in two cases, Wolf v. Colorado, 338 U.S. 25 (1949) and Mapp v. Ohio, 367 U.S. 643 (1961). Wolf held that the Fourth Amendment applied to the states but that the suppression remedy did not; Mapp overruled that latter part of Wolf and held that the Fourth Amendment and its exclusionary rule applied fully to the conduct of state actors. The doctrine Wolf and Mapp invoked to get there is generally known as the incorporation doctrine; the idea was that the Court interpreted the Due Process Clause of the 14th Amendment (which did apply to the states) as implicitly incorporating the Bill of Rights protections that had applied before only to the federal government. There's a long historical debate as to how persuasive this was as a reading of the Fourteenth Amendment, but the effect of the incorporation doctrine is clear: After incorporation, the rules that before had only applied to the federal government now also applied to state officers.

  For the Fourth Amendment, this was truly revolutionary: Suddenly the U.S. Supreme Court in Washington, DC, placed itself in charge of creating uniform rules to regulate every police officer in the United States. Plus, state and local police officers did lots of things that federal agents rarely did, like "walk the beat" and the like, so suddenly the Supreme Court had to decide a lot of issues involving day-to-day police powers that had never been addressed as a matter of constitutional law.

  This takes us to the powers to make arrest and search incident to the arrest that was at issue in Moore. Today, the rules for such things are well-settled: Under the Fourth Amendment, arrests require probable cause and the power to arrest permits a search incident to a lawful arrest. Obviously so, it seems to us: It's Crim Pro 101. But if you look back at the history of the Fourth Amendment, those rules end up being of surprisingly recent vintage.

  Indeed, at the time of incorporation, the constitutional threshholds for arrest and searches incident to arrest were largely unknown. If I'm not mistaken, the Supreme Court didn't settle that probable cause provided the Fourth Amendment standard for a warrantless arrest until 1959, in Henry v. United States, 361 U.S. 98 (1959) (although it had arguably hinted at this in 1949 in the Brinegar case). Until then, various formulations of the common law standard existed that states had mostly adopted, but state standards didn't matter because the Fourth Amendment didn't apply to the states. Further, Congress didn't enact a comprehensive statute on what the legal standard for a federal warrantless arrest might be until 1956. See Public Law 728, § 104, 70 Stat. 570, July 18, 1956. For most of American history there were few federal warrantless arrests, so legislating a federal warrantless arrest standard just wasn't a major issue. As the Supreme Court summarized the federal law of arrest in 1948, "it appears that the federal legislative materials are meager, inconsistent and inconclusive."
  Until United States v. Di Re, 332 U.S. 581 (1948), that is. I've already offered a very detailed explanation of Di Re, so let me just touch on the key point unexplored in the earlier post: What makes Di Re a difficult case to understand today is that the Court was applying the "search incident to a lawful arrest" doctrine at a time when there was no Fourth Amendment law at all on what made an arrest "lawful." Indeed, there wasn't yet a federal statute, either; that came eight years later. So the Supreme Court was trying to figure out what made an arrest "lawful" in the absence of preexisting constitutional or federal statutory law on arrests!
REPEAL 16-17 (mail):
Di Re dealt with a legal landscape that no longer exists. It would have been nice for the Court to have said something like "United States v. Di Re (1948) is hereby overruled." The fact that it didn't doesn't make Di Re's demise any less true.
4.24.2008 8:49pm
TGGP (mail) (www):
the differences between the Fourth Amendment in 1948 and today
Amazing how Constitutional Amendments can change without actually being amended.
4.24.2008 9:18pm
George Weiss (mail) (www):
what are you some kind of 4th amendment academic scholar ;)

this post was an absolute pleasure to read and shows exactly why A students become professors and B students judges
4.24.2008 9:48pm
Franklin Bynum (www):
Amazing how Constitutional Amendments can change without actually being amended.

There's nothing quite like reading such a thorough and insightful post, then scrolling down to read this glib nonsense.
4.24.2008 9:48pm
hattio1:
Can I ask a questio that reveals shocking laziness (well, okay, I'm busy, but so is everybody)? The media is reporting this case as "Court okays search to illegal arrests." From your (and other VCers) comments and posts it looks like that's incorrect, only arrests that are legal under federal law, but illegal under state law (and the searches incident to thos arrests) are effected. Is that correct?
4.24.2008 9:58pm
George Weiss (mail) (www):
another question is the actual disposition of DI Re after this case:

one could say that since Di Re is, (according to the court anyway) based on supervisory power and independent of the constitution-that both Di RE and VA v Moore now apply. In other words, that would mean that federal officers who arrest in violation of state law and without a federal offense involved still trigger the exclusionary rule when they search incident that arrest-because of DI Re-but if a state officer does the same exact thing, because there is no supervisory power over him and its constitutionally permissible via Va v. Moore-there is no suppression!!

or is that just too absurd and the new rule is that Di Re is overruled and federal officers who arrest for non arrestable state law infractions without a federal offense in mind also escape suppression of evidence obtained from a search incident thereto?
4.24.2008 10:13pm
Jay:
George--I think the supervisory power is over federal courts, not federal officers. So, if Di Re has continuing validity, it would mean such evidence would be excluded when the defendant was prosecuted federally, regardless of who originally arrested him, while states could do as they please in their own courts. Moore, obviously, was a state case, so there was no need to address the issue there.
4.24.2008 10:51pm
Roscoe B. Means:
I see both appellate opinions in Di Re as ambiguous, because they ignore other case law that was also part of the landscape at the time. Weeks applied the exclusionary rule to searches by federal officers in violation of the 4th Amendment, but also established the "silver platter doctrine," allowing federal prosecutors to make use of evidence unlawfully obtained by state officers, who until Wolf, were incapable of violating the 4th Amendment. That rule was modified by a series of cases that made application of the exclusionary rule dependent on the degree of federal law enforcement's involvement in the search. The "silver platter doctrine" remained in effect, though, until Elkins v. US, in 1960.

With no discussion of that doctrine in either appellate case, it's hard to say when and by whom the 4th Amendment violation found by Judge Hand was committed. Two federal "investigators" were present when Di Re was arrested. But Judge Hand used the quotes around "investigator," without explanation, and I took them to mean that those two were federal employees, but had no law enforcement authority. It seemed to me that the case went through the appellate system on a theory that the arrest and search were done completely by a state officer, Buffalo Police Detective Gross, who was then legally incapable of violating the 4th Amendment himself. If so, then the violation found by Judge Hand had to be committed by either the prosecutor or the judge, but again, I don't see how that could be found without discussion of Weeks, Byers, and the other "silver platter" cases. If the violation was not committed until trial, which seems most likely, then there is ample room to argue that the Supreme Court was, indeed, "splitting the baby" and replacing Judge Hand's constitution-based ruling with an exercise of supervisory power.

And what was with Judge Hand's "assuming" that Gross's authority for the arrest was sec. 177? Did the government not submit a brief, or did he just not read it?

Anyway, as I see it, the case got to the Supreme Court with this ambiguous 4th Amendment holding, as a vehicle for the SG to make an argument for a general, federal common law of arrest. Instead, the Court ruled that the lawfulness of an arrest that netted evidence offered in a federal trial was to be determined by the law of the state where the arrest took place. But they did not say whether that was a rule they thought was required by the 4th Amendment. The 4th Amendment is mentioned only twice in the entire opinion, in an earlier discussion rejecting the SG's first argument for an extension of the Carroll Rule. But at the bottom of the opinion, they "Affirmed" Judge Hand's decision finding a 4th Amendment violation.

I'm always pleased when I go back to these older cases to see how concise they often are. But Judge Hand's opinion looks lazy to me, and I don't really know what to make of the Supreme Court opinion. Since they repeatedly said that Congress could adopt a contrary rule, I assumed yesterday that Justice Scalia was completely correct in characterizing the opinion as one exercising supervisory power. Now I see where Prof. Kerr is coming from, but I see a lot of fog in the opinions.
4.24.2008 11:07pm
Roscoe B. Means:
I guess I mean "usually" pleased. That will teach me not to edit on the fly.
4.24.2008 11:14pm
Philip Huff:
Interesting.

But notice that not every member of the present court is a relative youth. Justice Stevens (according to Wikipedia, anyway) received his J.D. in 1947. That is to say, he was already a lawyer when Wolf v. Colorado was decided.

Shouldn't he, at least, be immune from anachronism?
4.24.2008 11:29pm
Redlands (mail):
Orin, you note that the 4th Amend. got not much attention before Wolf v. Colorado and Mapp v. Ohio. Never being one to hesitate to parade my ignorance around, wasn't there a bit more significance given to the 4th A. and much more interest in it after Weeks v. U.S., decided way earlier? Or did it take application to the states to push it into prominence?
4.24.2008 11:31pm
Respondent:
So for a government agency looking to see if they can increase the number of arrests, the following is the appropriate procedure:

1) Send a federal agent out to follow someone until he/she goes 1 mph over the speed limit, or touches the lane marker on a turn (Since the arrest would violate state law)

2) Perform an arrest (OK under Atwater, courtesy of Justice "home-run conservative" Souter) and search incident, and hope to find drugs (legal under Virginia v. Moore)

3) If no drugs are found, take to jail for up to 48 hours (presumptively legal under McLaughlin, again courtesy of our home run hitter), and wait until a jail visit, after which the inmate may be stripped searched, no questions asked (OK under Bell v. Wolfish, and even Justice Blackmun joined in this one)

4) If the arrestee sues the federal agent for violating state law (which he probably won't be able to afford), invoke qualified immunity

5) Repeat procedure on subsequent drivers, since the courts will never settle the underlying constitutional question once Saucier v. Katz gets overruled next year
4.24.2008 11:34pm
George Weiss (mail) (www):
Jay:

thats obviously right-my bad

but still then that question of whether di re remains in effect in federal courts. if orin is right-then it shouldn't-if the justices are serious about di re as a supervisory decision-then it should. of course, having a different suppression standard in federal vs state courts based on the exact same activity seems pretty stupid.
4.24.2008 11:37pm
Respondent:
Oops, I forgot:

Step 3a) If anything is found, turn evidence over to state court, since the federal courts won't admit it.

3b) Charge the state a fee for helping get a conviction thru evidence its own officers couldn't legally discover. Offer to use some of the money to tout the incumbent chief of police's "tough on crime" stance on television advertisements.
4.24.2008 11:40pm
30yearProf:
seems pretty stupid.


This seem to pretty well summarize the Supreme Court's evisceration of the 4th Amendment since the 1970's. We seem to have a bench of police "groupies."
4.24.2008 11:49pm
gov98 (mail):
Ultimately, Virginia v. Moore addresses a very important distinction, that is that a search can be illegal, but not unconstitutional. This makes perfect sense.
A state can, and frequently does provide greater
4.24.2008 11:53pm
George Weiss (mail) (www):
respondent-you still need probable cause of a felony in the officers presence to be constitutional. In Moore, the guy was arrested for a felony of driving without a license. speeding 1 mile over the speed limit or touching the line on a turn is not a felony anywhere i would imagine.
4.24.2008 11:54pm
George Weiss (mail) (www):
respondent-scratch that that was totally worng
4.24.2008 11:56pm
rick rick (mail):
Most people are familiar with the TV show, Dragnet. It was made with the cooperation of the LAPD, and supposedly shows how the LAPD use modern investigative techniques. The first version of the series was made in the 1950's (before Mapp), with Jack Webb as a slim young detective.

In one episode, he wants to talk to a suspect, so he breaks into the suspect's apartment, waits for the suspect to come home, and knocks the suspect around until he gets the info that he wants!

It's amazing that this behavior was so accepted, that it would be used in the plot for a showcase TV show. How things have changed.
4.24.2008 11:56pm
whit:
"This seem to pretty well summarize the Supreme Court's evisceration of the 4th Amendment since the 1970's. We seem to have a bench of police "groupies.""

interestingly, many who come from the police/prosecutor side vs. the defense attorney/blogger side think it's the exact opposite.

my point is that that viewpoint that the scotus are "police groupies" could only work from your particular vantage point.

i should note i work in the lovely 9th circuit AND a very very liberal state, so i only wish i could operate under more lenient fed standards.
4.25.2008 12:28am
jccamp:
"of course, having a different suppression standard in federal vs state courts based on the exact same activity seems pretty stupid."

The states are free to make their own search and seizure environment more restrictive that of the 4th Amendment. Whether any states actually have more stringent exclusionary rules is a good question.

In Florida, the legislature has explicitly adopted Federal search and seizure conventions. Other than Florida (and Virginia, thanks to the OP), I haven't a clue.

Anyone?
4.25.2008 12:45am
Gary Myers (mail):
This is somewhat off thread, but I am intrigued by Justice Scalia's repeated inclusion of the "in the presence of the officer" qualifier in his definition of the constitutional baseline for a warrantless arrest in the misdemeanor situation. Whether the "in the presence" qualifier is a constitutional requirement was a question left open in Atwater with other justices earlier saying it was not a constitutional requirement but purely a statutory one. Scalia seems to provide the Court's answer in his opinion.

That seems to raise the question whether the search of Moore would have been a Fourth Amendment violation if the officers had arrived ten minutes later after Moore and his dogs had exited his car and then made a custodial arrest for driving with a suspended license. I take it under Scalia's definition, any search incident in that situtation would be a Fourth Amend. violation because the "non-presence" arrest would have not satisfied the baseline Fourth Amendment definition with its in the officer's presence qualifier.
4.25.2008 12:50am
whit:
"The states are free to make their own search and seizure environment more restrictive that of the 4th Amendment. Whether any states actually have more stringent exclusionary rules is a good question. "

"good question?" you are kidding me right? answer is inarguable.

WA state, as just one example has MUCH more stringent exclusionary rules. i could give dozens of examples. i'll give a few. note our constitution mentions a right to privacy, unlike the federal one.

search incident to arrest:
1) locked containers are off limits.
2) trunk is off limits
3) in WA search must happen AFTEr arrest, not "incident to". this is a stricter standard. the incident standard requires it be contemporaneous. WA says it must be a full custodial arrest, and after the arrest.

abandoned property:
1) in WA state, we cannot search garbage left on the curb without a warrant.

consent searches
1) we cannot do consent searches without at least reasonable suspicion

pretext stops
1) any pretext stop is inherently unreasonable and will be suppressed. doesn't matter if you had valid PC/RS to stop the car. if court believes your subjective intent (ah, the lovely mind readers) was otherwise... suprressable

also much more strict in regards to curtilage in WA state, right of police to enter private property during investigations, etc. overhead surveillance etc.

hawaii was even more strict. in hawaii, we could not even search a CLOSED container on a person when we searched them incident to arrest (film canister, fanny pack, etc.) without consent or a warrant. and we couldn't search a car based on incident to arrest PERIOD.

so, it's not a "good question.".

it's a question that is inarguable. the answer is yes.

and don't even get me started on miranda in states like hawaii that have a "focus standard"
4.25.2008 12:55am
John (mail):
It is interesting that in death penalty cases the Supreme Court is happy to look all over the place to figure out what is cruel and unusual, but in determining when a search is "reasonable" it will not look even to U.S. states' legislatures. Instead, the Court regards state legislation as simply adding to a person's Fourth Amendment rights, rather than as a basis to interpret the reasonableness requirement of the Fourth. As Scalia said, "Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law."

Have we at last found an Amendment that will not change its meaning until it is amended?
4.25.2008 12:57am
M. Simon (mail) (www):
I think it is wise to go far back into our history and look a The Origins of the Fourth Amendment.

I believe it had something to do with searches for illegal (untaxed) drugs. Alcohol was the drug in that day.

I believe John Hancock was the subject of the search that lead to the 4th Amendment. Routine searches of vehicles (ships) was considered an abomination.

How times have changed.
4.25.2008 2:45am
OrinKerr:
M. Simon,

I don't find your comment particularly persuasive; the abuses that led to the Fourth Amendment involved unpopular speech and unpopular taxes, not drugs.
4.25.2008 2:49am
M. Simon (mail) (www):
Did I mention that John Hancock was a smuggler?

There was a time when America took pride in its smugglers and reviled the agents of such laws. Fortunately we still have enough Americans in that category to drive the enforcers nuts.

I salute them.
4.25.2008 2:49am
M. Simon (mail) (www):
note our constitution mentions a right to privacy, unlike the federal one.

I see. The US Constitution is now a grant of rights. I'll keep that in mind. Not that it will do me any good.
4.25.2008 2:54am
M. Simon (mail) (www):
So Orin are you saying that alcohol is not a drug?

And what higher tax can be imposed on a man than imprisoning him?

I find your argument unpersuasive.
4.25.2008 2:58am
OrinKerr:
M. Simon,

I am a true smuggler, a revolutionary, a fighter for justice.

Best,
Orin
4.25.2008 3:04am
whit:
"i see. The US Constitution is now a grant of rights. I'll keep that in mind. Not that it will do me any good."

NO. it's a recognizer of rights.

but i don't see how that makes sense as a response to what i said.
4.25.2008 3:34am
Senator Compliant (mail):
Dear Chief Justice Somin,

With plummeting approval ratings and his videotaped admission, uncovered in the FOIA requests by the Free Hillary Foundation, "I am a true smuggler," President Kerr has opened himself to the possibility of criminal charges. I am sure you agree this is doubleplusungood, but only if one remains a member of the Kerr Party...and a trusted public official, perhaps from the independent branch, would make a far superior replacement in the case of the Grand Orin's deposition, than Vice President Yoo. Indeed, you would be ensured a second term if your first act as American Vizier was to free Hillary Clinton from Guantanamo, as such benevolence would appease the proles. Of course, she would then have to be tried for her assasination of President Obama, and your administration would surely never survive a pardon. This is certainly doable by a certain Senate Majority leader, but I'd have to be certain that Vice President Compliant is in my future.
4.25.2008 5:01am
30yearProf:
interestingly, many who come from the police/prosecutor side vs. the defense attorney/blogger side think it's the exact opposite.


Actually, I spent two years as a trial prosecutor during which time I lost only one case. I felt then, as now, the the Bill of Rights was a rulebook of fairness that the government should follow in both spirit and detail.
4.25.2008 5:35am
BRM:
Prof. Kerr,

I enjoyed reading this thorough and persuasive post. I also enjoyed seeing your use of the word "constitutionalization." The editors of my Note just accused me of inventing the word "constitutionalization" (in reference to Lujan's influence on standing jurisprudence) and told me that as a student I cannot "make up words" as if I were an "academic." I may have to site this blog post to support my use, although I would probably be better off digging through law review articles to show other uses of the term.
4.25.2008 5:48am
whit:
"Actually, I spent two years as a trial prosecutor during which time I lost only one case. I felt then, as now, the the Bill of Rights was a rulebook of fairness that the government should follow in both spirit and detail"

i agree. but that wasn't my point. my point was it's common for those on one side of the argument to claim the evisceration has been occurring. it's common for those on the other side to see it quite differently and claim that in many cases, some additional rights have been fabricated.
4.25.2008 9:24am
Roscoe B. Means:
This seem to pretty well summarize the Supreme Court's evisceration of the 4th Amendment since the 1970's. We seem to have a bench of police "groupies."

That obviously depends on perspective, including historical. As I saw it, what passed for 4th Amendment law in the 70's and into the 80's was a product of overreaction to Mapp by a lot of lower federal and state courts. They wielded the exclusionary rule like a kid with a new toy. It wasn't the Supreme Court doing this; it was a bunch of lower courts who were "erring on the side of caution," and some who took Mapp as authority for a Bastille day in the courts. The view that the Court has eviscerated the Amendment since then seems like that of one who happened upon the scene at the crest of that wave of exclusionary excess, and did not look back to see the troughs between the swells as late as 1963. Viewed in a broader perspective, Mapp was an elephant diving into the bathtub. It's take an while for the wave action to subside, but the water level is still a lot higher than it was before.
4.25.2008 10:25am
30yearProf:
"it's common for those on the other side to see it quite differently and claim that in many cases, some additional rights have been fabricated."

My point being, to belabor the obvious, that I've been on both sides and I still see the recent decisions as an evisceration of the 4th. Amendment by a band of middle-aged police wannabes.

As an aside, more rigorous enforcement of the Bill of Rights seemed to me to have the effect of flushing the smaller fish out of the system thus channeling LE resources onto the bigger ones. If you can't search Bobby for standing on the street "looking mean," (and score a "cheap" collar) then you may have to devote the effort necessary to catch Johnny for a more serious crime. Just anecdotal, of course.
4.25.2008 10:49am
30yearProf:
Alaska Appeals court agrees on USSC's evisceration of the 4th. Amendment. But, state law prevails. Citizen wins one!

http://www.thenewspaper.com/news/23/2333.asp
4.25.2008 11:13am
whit:
"That obviously depends on perspective, including historical. As I saw it, what passed for 4th Amendment law in the 70's and into the 80's was a product of overreaction to Mapp by a lot of lower federal and state courts. They wielded the exclusionary rule like a kid with a new toy. It wasn't the Supreme Court doing this; it was a bunch of lower courts who were "erring on the side of caution," and some who took Mapp as authority for a Bastille day in the courts. The view that the Court has eviscerated the Amendment since then seems like that of one who happened upon the scene at the crest of that wave of exclusionary excess, and did not look back to see the troughs between the swells as late as 1963. Viewed in a broader perspective, Mapp was an elephant diving into the bathtub. It's take an while for the wave action to subside, but the water level is still a lot higher than it was before."

the unintended consequence of said judicial activism being the creation of a new class of movies, epitomized by the "dirty harry" movies. i didn't realize until i started studying constitutional law, how direct and on point they were in regards to the new rulings.

"Harry Callahan: Are you trying to tell me that ballistics can't match the bullet up to this rifle?
District Attorney Rothko: It does not matter what ballistics can do. This rifle might make a nice souvenir. But it's inadmissible as evidence.
Harry Callahan: And who says that?
District Attorney Rothko: It's the law.
Harry Callahan: Well, then the law is crazy. "


"[Harry is getting a dressing-down for his most recent arrest]
District Attorney Rothko: You're lucky I'm not indicting you for assault with intent to commit murder.
Harry Callahan: What?
District Attorney Rothko: Where the hell does it say that you've got a right to kick down doors, torture suspects, deny medical attention and legal counsel? Where have you been? Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment. What I'm saying is that man had rights.
Harry Callahan: Well, I'm all broken up over that man's rights! "
4.25.2008 12:39pm
Steve2:
So, the modern interpretation of the 4th Amendment allows the combination of pretext searches, searches incident to arrest regardless of the nature or basis of the arrest, searches of closed containers, searches of closed compartments, searches of closed containers within closed compartments, Terry stops, searches that are legally defined as not being a search (sniffs, pretty much anything involving electronic data, "open fields" as defined in Oliver, aerial surveillance, tracking devices, etc.), and when it does nominally prohibit something, has all sorts of time, place, and manner exceptions allowing the search. So, nowadays, it protects against nothing.

The old interpretation was it didn't apply to states. So, it used to be, it protected against nothing.

I don't see much of a practical difference, asides from that Cingular is the new AT&T.
4.25.2008 1:46pm
k. mccabe:
Great post Prof. Kerr. Thanks for following up.

And since someone asked above, I am in Illinois and we have the exclusionary rule - intepreted in 'limited-lockstep' (limited is somewhat of a misnomer, its rare for IL to depart post Caballes) with the U.S. Sup Ct's 4th amendment jurisprudence despite IL having an explicit right to privacy in our constitution.

And not to get too off-track, but I thought the 4th amendment was a direct response to the hated "writs of assistance" which were described to me in Crim Pro as basically open ended general warrants. The British had a problem with smugglers - so they went home to home to find anyone smuggling. Same for any other infraction. It would certainly explain the particularity requirement, need for individualized probable cause, etc...

And Respondent - you forgot 3(c): Asset forfeiture of cars, homes, cash, whatever the Gov can get their hands on. Nothing help ensures victory like bankrupting the defense before it gets started.

And Whit: I dont know any practicing criminal attorney's who seem to think that the 4th amendment has somehow been made stronger in the last 30 years (if it was ever strong to begin with?). All i see when examining cases in this area is a never ending line of precedent sanctioning more exceptions to the warrant requirement, requiring less exclusion of evidence, and generally just inviting the legislature to enact a full blown police state. The war on terror exceptions havent quite hit the reporters, but they will. And it is also pretty clear to me - as a practicing criminal lawyer -that prosecutors, legislators and others are not satisfied yet and will push for more exceptions. Anything to save the children! Granted, there are cases from time to time that are pro-liberty, but the trend is clear.
4.25.2008 1:51pm
whit:
"So, the modern interpretation of the 4th Amendment allows the combination of pretext searches,"

yes. with probable cause. warrants required in many circ's

" searches incident to arrest regardless of the nature or basis of the arrest,"

yes.

" searches of closed containers, searches of closed compartments, searches of closed containers within closed compartments, Terry stops, searches that are legally defined as not being a search (sniffs, pretty much anything involving electronic data, "open fields" as defined in Oliver, aerial surveillance, tracking devices, etc.), and when it does nominally prohibit something, has all sorts of time, place, and manner exceptions allowing the search. So, nowadays, it protects against nothing."

well, yes. if you are intellectually dishonest and onyl state what it allows and not what it disallows, then you can support that bogus statement. of course that's ridiculous hyperbole, but what do you expect?

and of course, any state can extend privacy rights (note that the constitution doesn't mention privacy, but just says no UNREASONABLE searches and seizures), and many do.

but the 4th says what it says. obviously "reasonable' is a subjective metric.

from a layman's perspective. i frequently have civilians ride along with me in my police car. i have also assisted with instruction at the "citizen academy" (a program where people from the community can get a taste of law enforcement training and practices).

on the whole, citizens are surprised at how many restrictions on searches there are for law enforcement, not how lenient it is. granted, that's flavored with the WA case law (which is more restrictive).

but the 4th only protects against unreasonable stuff. i take it you think all the examples above ARE unreasonable? groovy.

but to claim it protects against nothing is ABSURD RHETORIC.
4.25.2008 2:01pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 04/25/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
4.25.2008 2:13pm
whit:
"And Whit: I dont know any practicing criminal attorney's who seem to think that the 4th amendment has somehow been made stronger in the last 30 years (if it was ever strong to begin with?). "

but that's not what i claimed, nor was it the opposite of what i responded to .

the claim was that it was EVISCERATED by a bunch of cop wannabe judges.

iow, that was baseless over the top rubbish.

"All i see when examining cases in this area is a never ending line of precedent sanctioning more exceptions to the warrant requirement, requiring less exclusion of evidence, and generally just inviting the legislature to enact a full blown police state."

there's that silly rhetoric again. "full blown police state"

your argument loses all merit when you engage in such ridiculous over the top rhetoric.

it's like a libertarian arguing that mandatory car insurance laws are FASCIST. that kind of over the top rhetoric renders your argument invalid. right off the bat.

fwiw, i look at it this way. (and fwiw, this does not just apply to const. law but to almost any new invention -whether a device (see: tasers, computers, etc.), a case law decision, etc.

whenever a new precedent comes down, ESPECIALLY one that was such a sea change as Mapp, etc. the pendulum NATURALLY swings to overreaction, overapplication.

same with miranda. i know some old skool cops who ... when miranda came out used to mirandize "everybody with a pulse" because they were so afraid of having stuff excluded, that they figured - screw it, mirandize everybody.

with tasers. as soon as they came out we saw a wave of "questionable" taser applications because it;s a new toy that everybody wanted to try.

when HPPA first came out, dr's and nurses totally overreacted and overestimated its reach, out of fear. i would drop off a criminal at the hospital after an arrest if he needed medical care (he had a nasty abcess). since it was just a low grade felony, instead of wasting taxpayer dollars guarding him, we would just have the hospital call us when the guy was ready to be released. in the past- no problem. if he ran away, no biggie. but after HPPA some hospital peeps thought if they called us to let us know he was ready to be released, that violated his "medical privacy rights" under HPPA. which is wrong. but whatever.

if you want to make the point that since the 70's, the "market has corrected" to the extent in regards to the 4th, i'd agree. to a large extent that's true. and it's not surprising considering this area of new law caused people to MASSIVELY overestimate what the 4th actually said.

i recall an old skool cop back east (trained me) who thought that if you TOUCHED a person in any way that this was a "functional arrest" and you needed probable cause. that's dumb, but typical of the overreaction.

but to claim 'evisceration' and "police state" is just over the top crap, to put it bluntly.

" The war on terror exceptions havent quite hit the reporters, but they will. And it is also pretty clear to me - as a practicing criminal lawyer -that prosecutors, legislators and others are not satisfied yet and will push for more exceptions. Anything to save the children! "

and as i have said a million times, the average citizen is far more affected by law changes (right to free association, mandatory arrests, right to confront your accuser, due process, right to carry a gun, etc.) in DOMESTIC VIOLENCE LAW to "save the children" (and the women) than he will ever be affected by the war on terror or drugs. THAT is a real area of concern imo.

"Granted, there are cases from time to time that are pro-liberty, but the trend is clear."

except that's not what i disagree with.

i disagree with the allegations of evisceration, police state, etc.
4.25.2008 2:13pm
Steve2:

but the 4th only protects against unreasonable stuff. i take it you think all the examples above ARE unreasonable? groovy.

I do indeed think all of those are unreasonable. I also think the "if you speak to anyone while on-duty, Mirandize them first" and "any time you touch someone while on duty, that is a functional arrest" rule are reasonable. I see no problem with the Washington rules you stated above.



but to claim it protects against nothing is ABSURD RHETORIC.


Then tell me: what does it actually disallow? Or, conversely, what doesn't it allow? I'm not aware of any real restriction, so I really don't think I was using absurd rhetoric. I may have been, but I honestly don't think enough unreasonable things are prohibited, and I don't really know of any reasonable (in my mind) things that are.
4.25.2008 2:47pm
db:
BRM:

You might try Grutter v. Bollinger, 539 U.S. 306, 362 (2003) (Thomas, J., concurring in part and dissenting in part) ("The constitutionalization of "academic freedom" began with the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire." (citation omitted)). Or, if your editors aren't receptive to a quote from Justice Thomas, try Georgia v. Randolph, 126 S. Ct. 1515, 1539 (2006) (Roberts, C.J., dissenting) ("Rather than constitutionalize such an arbitrary rule, we should acknowledge that a decision to share a private place, like a decision to share a secret or a confidential document, necessarily entails the risk that those with whom we share may in turn choose to share-for their own protection or for other reasons-with the police.").
4.25.2008 2:52pm
whit:
"I do indeed think all of those are unreasonable."

fair enough. i disagree. but at least that's a position

" I also think the "if you speak to anyone while on-duty, Mirandize them first"

which is of course, absurd.

that takes it even farther than hawaii, which is (or was) a "focus state". we had to mirandize a suspect we called on the PHONE.

custody was a non-issue.

but hey. if a state wants to recognize additional rights for people, and additional restrictions on police, go for it. just don't pretend the federal constitution requires it.

that's my only beef

heck, a state could conceivable not authorize ANY search warrants for ANY reason.

why not?

and no arrests, either. people don't like to be arrested, after all. so, let's abolish them

etc.

" and "any time you touch someone while on duty, that is a functional arrest" rule are reasonable."

again, absurd. but at least i can respect you takin a position

" I see no problem with the Washington rules you stated above. "

WA rules are based upon a constitution that is MUCH more explicit about privacy, etc. while i think SOME WA supreme court rulings are bad as a matter of policy (many offer too many restrictions on police. some offer too few), at least we can agree that WA went about it the right way. by drafting a constitution that is much more explicit and broad in its recognition of rights.
4.25.2008 3:07pm