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The Good Old Days of the Fourth Amendment:
In the comment thread on yesterday's post about Virginia v. Moore, commenter "30yearprof" writes:
This seem[s] 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."
  I hear this pretty often in debates on the Fourth Amendment. The Fourth Amendment has been eviscerated, the complaint goes. The Supreme Court has gutted it; there's hardly anything left. Back in the old days — that's when the Fourth Amendment really meant something.

  I wonder, though, when exactly were the "good old days" of the Fourth Amendment? Clearly the "good old days" of the Fourth Amendment could not be from 1791 to 1961, before the full application of the Fourth Amendment to the states. Before 1961, the Fourth Amendment didn't do much, as most police work was state local and the Fourth Amendment either didn't apply at all (until 1949) or didn't make any difference in practice (from 1949 to 1961). In 1961, with Mapp v. Ohio, the Fourth Amendment suddenly became a hugely important control on routine police investigations: Maybe if you want to pick a time of the "good old days" of the Fourth Amendment, you say 1961.

  But no, that can't work. 1961 was before Berger and Katz, before the "reasonable expectation of privacy" test and before the Fourth Amendment applied at all to bugging or wiretapping. So the good old days probably don't include from 1961 to 1967. Maybe we want to start the good old days on December 18, 1967, when the Supreme Court handed down Katz.

  Maybe. On the other hand, the record in that period is sort of mixed. A few months before Katz, on May 29, the Supreme Court had dramatically expanded the warrant power and overruled the mere evidence rule in Warden v. Hayden. And just a few months after Katz, in Terry v. Ohio, handed down June 10, 1968, the Supreme Court took a significantly watered down approach to the Fourth Amendment to regulate police/citizen interactions on the street. It's kind of hard to know how you balance these cases: for example, was Terry a gutting of the full Fourth Amendment protection, or an expansion of the Fourth Amendment to street enounters? I think it's pretty mixed record to find the real high point of Fourth Amendment protection.

  The Supreme Court's record since 1968 is also somewhat mixed. It is clearly correct that there are some cases that clearly narrowed Fourth Amendment protection, like United States v. Leon. But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance. And then there were also some cases that expanded protection, like Payton v. New York or Kyllo v. United States.

  If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that's right, it seems to me that the "good old days" of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.
DavidBernstein (mail):
See Ken Kersch, Constructing Civil Liberties, for an (implicit) argument that the "high point" of Fourth Amendment jurisprudence was sometime before 1930, when the Amendment was still thought to protect businesses from intrusive government investigations undertaken without probable cause.

Also, the fact that the Fourth Amendment was "incorporated" and thus has to be interpreted narrowly to account for routine police investigations nationwide has been the downfall of the Fourth Amendment--it could be interpreted much more broadly if applied only to federal activity.
4.25.2008 4:20pm
Grant Gould (mail):
But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance.

I think your construction here rather begs the question.

Most of the folks who take the "eviscerated" view would say that Fourth Amendment protections previously presumed to be present were eliminated. The question is what the default is; you say that by default nothing is protected and so the court merely failed to extend; they would say that by default everything is protected and so the court eviscerated.

Whether or not the Fourth Amendment prohibited some novel search-like procedure (like aerial surveillance) before the procedure existed is a bit of a philosophical question, true, but you seem to be relying on it (and on always answering it in the negative) to frame your argument.
4.25.2008 4:39pm
George Weiss (mail) (www):

Also, the fact that the Fourth Amendment was "incorporated" and thus has to be interpreted narrowly to account for routine police investigations nationwide has been the downfall of the Fourth Amendment--it could be interpreted much more broadly if applied only to federal activity



you sure?

were it not applied to the states-in states with no corollary provision of their state's constitution, police could ransack your house at any time for any reason on a whim-and take things for an indefinite period of time-so long as they gave it back or paid you for it.

even if there was a corollary state provision its unlikely that all those states, even most of them, would adopt an exclusionary rule.

and in many states-there would be no civil remedy either-either because of lack of a corollary provision, or because of lack of a wavier of sovereign immunity. there would also be no civil remedy based on a federal statue (which would sometimes get around the immunity)-since the 4th wouldn't extend to the states and thus the action would not be a violation of constitutional rights under color of law.

so basically, without incorporation, what you would have is certain states with the ability to arbitrarily search and seize, without and check in either the criminal process or by civil tort. Good luck getting the police to listen to your administrative complaint.
4.25.2008 4:40pm
OrinKerr:
For corporations, I think the high point was after Boyd (1879?) and before Hale v Henkel (1909). The issue wasn't the requirement of probable cause: The government was flatly prohibited from issuing subpeonas for business records. But that assumes it is a federal investigation, not a state one, and that we're worried about business records as a major issue.

As for the point about the "downfall," I think incorporation has watered down protections in some areas but that the overall role of the Fourth is still vastly greater than it would have been otherwise.
4.25.2008 4:43pm
DanG:
One problem with your approach is that it looks at only SCOTUS cases. For instance, suppose that prior to Katz a substantial majority of lower courts (federal circuit courts and/or state supremes) held that the fourth amendment covered wiretaps, and all SCOTUS did was confirm that rule and make it binding on a minority of jurisdictions that had taken the contrary view. I have no idea if this is true since I am not a Fourth Amendment scholar. But it occurs to me that a debate on the "good old days" with respect to a legal issue or area of law can't look only to SCOTUS decisions without accounting for the weight of authority among lower courts.
4.25.2008 4:43pm
OrinKerr:
Most of the folks who take the "eviscerated" view would say that Fourth Amendment protections previously presumed to be present were eliminated. The question is what the default is; you say that by default nothing is protected and so the court merely failed to extend; they would say that by default everything is protected and so the court eviscerated.

I don't understand this. If we're talking about the high point of Fourth Amendment protection, the obvious default is then-existing protections. I don't understand why you would imagine a fantasy world of total protection and then say that any deviation from the fantasy world is an "evisceration" -- any more than you can imagine a default of no protection and say that any protection at all is a wonderful new gift by the Justices.
4.25.2008 4:47pm
HipposGoBerserk (mail):
I think the problem is that academics like to theorize about what the protections of the 4th amendment should be, while the courts are in the real world where cases tend to arise in circumstances where a guilty party has been caught red-handed. That and, as Hobbes could explain to you, there is real pressure from society to put these guys in jail.

In short - the practice will never meet theoretical standards.
4.25.2008 4:48pm
OrinKerr:
Whether or not the Fourth Amendment prohibited some novel search-like procedure (like aerial surveillance) before the procedure existed is a bit of a philosophical question, true, but you seem to be relying on it (and on always answering it in the negative) to frame your argument.

False. I write, "or addressed issues that had never been resolved, like the many cases on aerial surveillance." That means that aerial surveillance had not been addressed,
4.25.2008 4:48pm
OrinKerr:
One problem with your approach is that it looks at only SCOTUS cases. For instance, suppose that prior to Katz a substantial majority of lower courts (federal circuit courts and/or state supremes) held that the fourth amendment covered wiretaps, and all SCOTUS did was confirm that rule and make it binding on a minority of jurisdictions that had taken the contrary view. I have no idea if this is true since I am not a Fourth Amendment scholar. But it occurs to me that a debate on the "good old days" with respect to a legal issue or area of law can't look only to SCOTUS decisions without accounting for the weight of authority among lower courts.

I'm not only looking at Supreme Court cases; it's just that those are the ones that revolutionize the law. For example, no court had held that the Fourth Amendment applied to wiretapping before Berger/Katz, as the Supreme Court had expressly held it did *not* in Olmstead. It was up to the Supreme Court to change its mind.
4.25.2008 4:51pm
Mike& (mail):
I don't know if your dismissiveness is appropriate. I've talked to a lot of old timers in the criminal defense bar, and they all have noticed a change in Fourth Amendment doctrine.

It could be that the way the judges are apply the law has changed. It could just that old timers think that there were some mythical "good old days." But most of the guys I've talked to all sincerely believe a change has occurred - especially in drug-related cases. Arguments that would have worked in the 80's will get laughed out of court now.

I also know that, when going through Crim. Pro, I and many others god the sense that the casebook was progressing from "bad to worse." I suppose you address that point by noting:
But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance.

That point assumes the Fourth Amendment has no meaning until the Supreme Court speaks to the issue - and it presupposes that what the Court says is The Truth. Yet many of us were shocked to learn that the government could fly over our homes to spy on us. And that they could trespass on our property (the whole curtailage/open fields nonsense).

It's also the case that police practices change due to Supreme Court rulings. Perhaps trespass was uncommon because everyone thought the Fourth Amendment prohibited it. Then Supreme Court allowed it, making it common.

If that were the case, it would be entirely logical to say that the "good old days" of the Fourth Amendment existed back when everyone had the correct sense of what the Fourth Amendment requires - until the Supreme Court spoke to the issue and gave the wrong answer.

I'm not sure what my take is on it. But when, to a person, people who have been in courts representing defendants for several decades all tell me the Fourth Amendment has become more pro-police, it's hard for me to ignore. And very often, a survey of Supreme Court case law does not tell the whole story.
4.25.2008 5:00pm
BruceM (mail):
Orin, just because people (like myself) complain about the 4th Amendment being eviscerated, raped, and pillaged by the cop-lovers appointed to the federal bench doesn't mean that there ever were "good old days" of the 4th Amendment. Just because something keeps getting worse and worse doesn't mean it was ever good.

Granted, some people may talk about "the good old days" but I'm certainly not one of them and I think they're just being melodramatic. Though things were certainly better last week....
4.25.2008 5:04pm
Chris B.:
This might be more relevant to Prof. Kerr's other post, but these have been good posts. I would say that if there is a problem with Va v. Moore (and I'm not so sure that there is one), it's as a symptom, rather than the root problem. As an aside, if someone took a purely political view of the court, it'd be interesting that a presumably anti-criminal decision is incorrect because of problems rooting back to the 4th A being incorporated in the first place.

In that vein I will concede that the problem Moore's argument raised that that the 4th A would change from state to state becomes irrelevant if you think incorporation was shaky or incorrect. But, as you say, in that case it makes perfect sense that the current Supreme Court, rather than rehash incorporation debates, ruled unanimously for Virginia.

And regarding Di Re, I still the opinion is "quite difficult to parse," but your theory that one could only hope to parse it if you put yourself in the legal context of the time makes sense. A part of me would love to see if there's contemporary law review commentary at the time Di Re was decided.

But, indeed, unless one is willing to go back to these very fundamental issues that you raise, then I still think Moore is an easy case. It's telling about the current Court and where we are that Goldstein's basic argument was about 4th A balancing rather than any of these more fundamental concerns.

Ah well. Tempora mutantur nos et mutamur in illis.
4.25.2008 5:04pm
Tax Lawyer:
You point to the question of how to weigh various precedents in your post, but you don't really answer it. And you severely underweigh, I think, one case. United States v. Leon alone, has in practice all but written the warrant requirement out of the Constitution.

That last sentence is an exaggeration, but not much of one. And it underscores this point: Whether the 4th A has been "eviscerated" by the Court's precedents is ultimately a practical question, not a doctrinal one. And the effect of LEon and its ilk has been rather greater than you give the "evisceration" camp credit for.
4.25.2008 5:25pm
SpenceB:
..in "the good old days" when the U.S. Constitution & Bill of Rights was formally adopted — what specific citizen "right" did it intend to protect ?

Does that "right" still exist as a legal "right" ?
4.25.2008 5:25pm
Anderson (mail):
The good old days, of course, were when the police could do whatever they wanted.
4.25.2008 5:43pm
KevinM:
I think Mike&has it right. The "good old days" comments, I think, are not about the evolution of the Sup Ct case law, but rather about the hospitability of the trial bench. I'm not an old timer -- I'm sort of a middle-ager -- but I tend to agree that, in a run-of-the-mill case, a defense attorney once had a fighting chance of having a suppression motion granted, but now has a snowball's chance.
In any event, the Supreme Court case law can't be looked at just in terms of the theoretical scope of the 4th A and the incorporation doctrine; some of the real-world contractions of 4th A protections were lightly disguised as rulings about the exclusionary rule and standing.
4.25.2008 5:57pm
Gino:
Ok, I'm convinced. So, how do we go about getting some protection from unreasonable government intrusion into our homes, papers and effects? Should we amend the Constitution? What should the amendment say? Clearly, whatever that 4th Amendment thingy said didn't work.
4.25.2008 5:58pm
NaG (mail):
So I am guessing that it is "worse" when the police do something with a Supreme Court opinion formally supporting the practice, as opposed to them doing the same thing without that issue having been raised before the Court.

I dunno about that. In the end, the police are doing the same thing. And I think the trial courts generally hedge on the side of the police anyway. After all, aren't most or all of these Supreme Court cases ones in which the criminal defendant lost at the trial level?
4.25.2008 6:06pm
U.Va. 3L:
Whatever the precise date of the "good old days," it's tough to imagine a politician today who responded to Mapp as then-Minnesota-AG Walter Mondale, who told the Minnesota State Police annual convention that Mapp was a welcome decision because it would only hurt cops who weren't doing their jobs right to start with.
4.25.2008 6:24pm
Nessuno:
3L,

Mondale was not then and has never been representative of mainstream political opinion. He has always been on the fringe.

And it is not at all "tough to imagine" a politician saying similar things now. Minnesota has moved to the right since 1961 (mostly recently), but California has moved to the left. Such a statement might be expected from the now-California-AG Jerry Brown.
4.25.2008 7:03pm
hattio1:
Nessuno,
So, find a similar quote from Jerry Brown.
4.25.2008 7:09pm
Paul Allen:

were it not applied to the states-in states with no corollary provision of their state's constitution, police could ransack your house at any time for any reason on a whim-and take things for an indefinite period of time-so long as they gave it back or paid you for it.


What's interesting is that this isn't obvious at all. This is an artifact of 'incorporation' which has taken the formula of the amendments as the source of the rule. Conversely, 'Due Process' itself could have enabled looser but still existent standards for state conduct without reference to the 4th amendment. This makes even more sense in the fourth amendment suppression context which is literally a due process concern.

In general: criminal procedure fits very well under a 'Due Process' rule--much better than the first or second amendments do for example.
4.25.2008 7:27pm
OrinKerr:
Ok, I'm convinced. So, how do we go about getting some protection from unreasonable government intrusion into our homes, papers and effects? Should we amend the Constitution? What should the amendment say? Clearly, whatever that 4th Amendment thingy said didn't work.

How about calling your congressman? Tell him (or her) what law you want. If enough people call . . .
4.25.2008 8:00pm
Nessuno:

How about calling your congressman? Tell him (or her) what law you want. If enough people call . . .


How dare you inject talk of democracy into a discussion of the Constitution.

People go to law school to get beyond all that bourgeois gobbledygook.
4.25.2008 8:26pm
whit:
"I dunno about that. In the end, the police are doing the same thing. And I think the trial courts generally hedge on the side of the police anyway. After all, aren't most or all of these Supreme Court cases ones in which the criminal defendant lost at the trial level?"

are you aware of what is referred to as "selection bias?"

your post is illogical

of course most SCOTUS cases involving appeal of a criminal case involve a defendant who LOST!

jeeze. defendants who win DON'T MAKE APPEALS.

also, as somebody who has testified scores of times in court, your claimk that they hedge on side of the police is laughable. especially so in misdemeanor courts.
4.25.2008 8:30pm
kietharch (mail):
It is interesting to read lawyers talk. With two exceptions, above, you exclude the obvious:

The fourth amendment protects people who have in their possession self-incriminating evidence.

If the Police raid my home and find a Kalashnikov and amonium nitrate the evidence will be excluded, right? I will be set free. My neighbors will not like that and, it is likely they will express their horror and disgust (at my exoneration) to several authorities (police, judiciary and my lawyers). Do you think that this might affect future judicial opinions? should it affect future judicial opinions? please answer this question as my neighbor and not as a lawyer.

The fourth amendment protects the guilty. How surprising is it that the concept (exclusion) might be eroded over time?
4.25.2008 8:45pm
hattio1:
Whit says;

of course most SCOTUS cases involving appeal of a criminal case involve a defendant who LOST!


And when the state appeals, it usually means they lost. I know that they can't appeal if they go to trial, but let's face it, a successful suppression motion (succesful from D's point of view) often means the case is over...and the State appeals.
4.25.2008 9:18pm
DDD:
The previous post is on the right track: as Prof. Amar has pretty conclusively shown, the exclusionary rule gives windfalls to guilty people whose 4th Amendment rights are violated, but does little to protect the innocent (except indirectly). This is a pretty obvious inversion of the purpose of the right against unreasonable searches.

Courts seeing typical 4th Amendment cases know this (ie, that upholding a robust interpretation of the amendment would result in a guilty person going free), and whether they admit it or not they therefore tend to read the protection narrowly. That is, since the remedy is not matched well to the right, the courts define the more narrowly than it probably should be.

The best thing we could do to "reinvigorate" the 4th Amendment, therefore, is to get rid of the exclusionary rule.
4.25.2008 9:30pm
DDD:
Just a note on my 8:30 post. When I said "previous post" I meant the Keitharch 7:45 post.
4.25.2008 9:32pm
alias:

as Prof. Amar has pretty conclusively shown, the exclusionary rule gives windfalls to guilty people whose 4th Amendment rights are violated, but does little to protect the innocent (except indirectly). This is a pretty obvious inversion of the purpose of the right against unreasonable searches.

I'm not up on all of Prof. Amar's work, but the premise seems fairly obvious. There isn't much money in suing for false arrests or for suing over the indignity of an illegal search, so the only people with a real incentive to challenge illegal searches are guilty people.

However, the "except indirectly" comment seems like a pretty big "except." Much of the point of constitutional criminal procedure doctrine is to regulate the behavior of police officers and prosecutors ex ante. That is, if a court lets one guilty person go because the police illegally broke his door down, then in numerous future police searches--so the thinking goes--the police will hesitate before breaking someone's door down, which will protect future innocents as well as future guilty people.

Miranda technically doesn't protect innocent people "except indirectly," but the indirect protection actually works, no? AFAIK, police more or less always read arrested people their rights when they're arrested, and some of those people turn out to be innocent.

Perhaps Prof. Amar's point was bit more nuanced than the idea that we generally vindicate constitutional criminal procedural rights by overturning the convictions of guilty people whose rights were violated and hoping that police and prosecutors take a lesson from that.
4.25.2008 10:28pm
30yearProf:
the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973.


As it turns out, Orrin, that is the period during which I practiced criminal law in the trial courts. Supression motions were regularly won by defense counsel and we all (prosecutors and defense counsel) thought the Fourth Amendment was a real barrier to police lawlessness.

Mike&is correct, IMHO, when he says "it would be entirely logical to say that the "good old days" of the Fourth Amendment existed back when everyone had the correct sense of what the Fourth Amendment requires - until the Supreme Court spoke to the issue and gave the wrong answer."

It seems that one after another, since the WOD began, cases have come down upholding the conviction of the guilty doper and, at the same time, taking another bite out of the liberty that the rest of us are supposed to enjoy.

It's like the Supreme Court, nine rich, upper class folk living in a glass jar, just doesn't understand the real world. The government invokes the incantation "officer protection" or "evidence destruction" and without a shred of evidence that the statement is true (or that only by expanding police power can the problem be solved), another bit of liberty disappears. The Justices certainly have a different view than the mother who got arrested, strip searched, etc. in Texas for a stop sign violation because the cop wanted to humiliate her. In 1970, cops didn't do that to ordinary folk.

The Court seems to have forgotten, maybe it never knew, that the Bill of Rights exists for the good people even if it protects a scumbag once in a while. I suppose if your only view of police practices (because very important YOU never encounter the police) is appeals by one obviously guilty defendant after another, you might forget the good people who never appear in your august chambers. But Judges are supposed to be above that narrow viewpoint. It seems they are not.

Maybe the actual complaint is that the Supreme Court has brought "equality" to the CJ system -- we are all treated like n*gg*rs in 1960 -- and we don't like it. I was an outside agitator in North Carolina in the mid-1960's because I thought every American was entitled to be treated like a Supreme Court Justice -- with dignity, etc. I don't want MY wife treated any other way.

You probably never saw the TV series "Cannon" in the mid-1970's but I watched it every week. I particularly remember one episode in which the local police thug was harassing Cannon and demanded that he open his auto truck to a bogus search. Cannon replied "the only way you are going to get in that trunk is if I sell you the car or if you get a warrant." Yippee, I thought. That's right, buy it you a**hole!

In 1974 that viewpoint was true at the trial court level because the Supreme Court hadn't yet pronounced that there was no "expectation of privacy" in an automobile (or whatever other excuse five of them used for creating open season on cars).

So Mike&is again correct when he says "the 'good old days' of the Fourth Amendment existed back when everyone had the correct sense of what the Fourth Amendment requires - until the Supreme Court spoke to the issue and gave the wrong answer." Maybe he's reading my mind.

The problem is that the Supreme Court has now spoken and, in so doing, they have created made the Constitution authorize a police state inconsistent with a fair reading of the 4th Amendment. They haven't changed the rule (PARDON ME, Orrin) but they have certainly reduced it to a paper barrier with less substance that most practitioners in 1974 thought it had. They have made it clear that the 4th Amendment "has no clothes."

P. S. I like the exclusionary rule because it directly punishes the bad search by eliminating the value of it (use of the fruits). In this day of officer "good faith" (as a cover for both inexcusable ignorance and venality) any right of action for the offended citizen (the innocent one, for example) is just a charade. Those who would get rid of the exclusionary rule have NEVER suggested any other effective way of eliminating the VALUE to the police of continuous misconduct. If anything, the Supreme Court appears to have "secretly" blessed the practice.
4.25.2008 11:51pm
OrinKerr:
30yearprof,

I realize you have a lot of passion behind your views, but you make a number of misstatements. Just to pick one example, you write:
You probably never saw the TV series "Cannon" in the mid-1970's but I watched it every week. I particularly remember one episode in which the local police thug was harassing Cannon and demanded that he open his auto truck to a bogus search. Cannon replied "the only way you are going to get in that trunk is if I sell you the car or if you get a warrant." Yippee, I thought. That's right, buy it you a**hole!

In 1974 that viewpoint was true at the trial court level because the Supreme Court hadn't yet pronounced that there was no "expectation of privacy" in an automobile (or whatever other excuse five of them used for creating open season on cars).
But as you surely know, your "yippee, that's right" thought was 100% wrong: In Carroll v, United States, in 1925, the very first case involving an automobile, the Supreme Court had held that cars could be searched for evidence without a warrant based only on probable cause. This rule hasn't changed at all in 83 years: there is exactly as much expectation of privacy in a car today as there was in 1925.

 : Now, perhaps in 1967 there was an expectation that the Fourth Amendment would continue to change in directions that would make its privacy protections stronger. That may be right; in the heady days of the Warren Court, with Justice Brennan piloting the ship, constitutional change was a given. I often hear versions of that claim in criminal procedure conferences: Scholars often voice the view that if only Nixon had lost in 1968, then Fourth Amendment law really could have developed in the "correct" way. But that seems to set a rather odd bar: It measures the Fourth Amendment against what never was.
4.26.2008 12:53am
k.mccabe:
I like Coolidge v. New Hampshire and I cite it in every 4th amendment case we take up on appeal. I remember the good ol' days (even though i was not alive) as a Sup Ct opinion that says warrantless seizures are PER SE unreasonable, subject only to limited (perhaps i'm getting precise language wrong, i'm going on memory) well-recognized exceptions that are carefully and jealously drawn. Maybe that time never existed - but the rationale behind that quote to me is something that is missed and has been missing from the Sup Ct since Rehnquist became chief-judge.

The exceptions are not carefully or jealously drawn (in fact they keep expanding) and warrantless seizures, particularly anything involving drugs, are now PER SE reasonable in practice.

And if you remember from Coolidge, they also set out a test that applied to plain-view seizures. They required that the 1) police be lawfully in a place where the observation is made 2)it is immediately apparent that the item viewed is contraband or otherwise subject to seizure and 3) the discovery is inadvertent. The reasoning for 3 being if the police know in advance the location of contraband and intend to seize it, the constitution demands the government get a warrant absent exigent circumstances.

Read the appellate reporters now on plain-view. You will likely not find many references to the third requirement. Now, its the officer had a right to be there and discovered evidence in plain-view. End of story. What was the practical effect in this slight shift: in the real world, cops began getting very lucky. The suspects just drop a clear plastic bag of cocaine at their feet when the police approach. That happens at least 2,000x a yr in Chicago alone.

Its amazing how many drug traffickers, always keen to elude detection, leave large bags of drugs or currency on the passenger seat during a traffic stop. Funny that.

In reality, the police detect something that tips them off - they do a search and find the drugs or money or guns somewhere hidden in the car (if only under the seat with someone who exercised minimal effort to avoid detection). But if the police are actively searching for drugs or guns or money, the discovery is not inadvertent and hence is not justified absent exigent circumstances (which if the police have the situation in their control, they lack). What to do?? Require a warrant as Coolidge instructs or get rid of the inadvertent discovery requirement? I think we all know how this choice came down. I wont even comment on dogs being legally allowed in any and all routine traffic stops now. This is just one small example.

The constitution is not neutral. It is pro-liberty. The problems with the 4th in my opinion are not solely because of incorporation - its a direct result of the massive increase in federal policing. The decisions of the warren court, etc... were restrictive of the overwhelming need for police to be able to arrest and for the government to convict criminals. Especially after the hippies did all those drugs.

The federalization of criminal law - itself likely unconstitutional as a massive overreach of Congress' limited authority -is also a culprit here. I cant prove it - but it makes more sense to me that incorporation and over criminalization at the federal level caused the problem than saying applying the 4th to the States ensured its demise. The 4th is a direct restraint on government power - so it is and will be opposed by government at all levels, State and Federal, whether in the legislature ,the courts or the executive branch. This is the simplest explanation to me.
If it was only opposed by the States, in the absence of general federal police power/force(s), perhaps it would still have some teeth or at least be respected in some of the states. The people could then pick and choose which States they wanted to live in that suited their particular needs/ideas better. You know, that whole laboratory of democracy thing.
4.26.2008 1:20am
30yearProf:
Orin,

So, it's a good thing that I don't teach criminal procedure.

Here's a question for you. In these days when we use statistics for everything from banning smoking to initiating million dollar manufacturing programs because we have refined polling to a + or - 3% range, why do we still decide "expectation of privacy" issues without any evidence at all. The courts decide using solely the judge's or Justice's narrow life experience, superior intelligence and education, and class biases. In 1804 that's all we had. Not so in 2008.

It's 83 years after Carroll but I suspect at least 80% of the public either (1) has an expectation of privacy in a locked vehicle trunk or (2) believes that they ought to have such an expectation of privacy if the Justices let them. The Supreme Court is (OK, "may be") out of sync with the American public on most other "expectation of privacy" issues too. Not the phone booth case, of course, but most others.

Now that we don't have to depend on the POV of aristocratic Justices because it's not 1804 anymore, why should we continue to, in effect, guess at American's expectation of privacy when we can directly sample it? As long as Justices get to second guess legislatures, why not ask the very folks whose expectation the court is guessing about?

The polling would have to be fair and ask "Do you believe you have an expectation of privacy" not "should a criminal have ..." I wonder what answer you'd get to the Texas Mommy's stop sign arrest case if you asked 1000 non-criminal mothers of young children. I suspect 100% (+/- 3%) would say "no, they can't." The public knows that a the difference between a traffic offense and a felony, even if the Justices don't.
4.26.2008 1:49am
30yearProf:
The people could then pick and choose which States they wanted to live in that suited their particular needs/ideas better. You know, that whole laboratory of democracy thing.


Alaska, maybe.

The court puzzled over why a guilty motorist would be as likely as an innocent motorist to consent to a search that was clearly not in the driver's self-interest. The court noted New Jersey Supreme Court statistics that showed 95 percent of motorists consented to search requests and that 80 percent of those who did so were eventually found to be wholly innocent. The appeals court determined that the most likely explanation was that motorists do not believe that they can answer "no" to the search request without suffering negative consequences.

"Motorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officers request for a search," Mannheimer wrote. "Because of the psychological pressures inherent in the stop, and often because of the motorists' ignorance of their rights, large numbers of motorists guilty and innocent alike accede to these requests."

Mannheimer went on to explain that allowing coercive search requests to be made for anyone stopped for any traffic offense would, in effect, give police the ability to perform searches on any person at any time. * * *


http://www.thenewspaper.com/news/23/2333.asp
4.26.2008 2:11am
federal farmer (www):

Ok, I'm convinced. So, how do we go about getting some protection from unreasonable government intrusion into our homes, papers and effects? Should we amend the Constitution? What should the amendment say? Clearly, whatever that 4th Amendment thingy said didn't work.


Well, since "Congress shall pass no law" and "shall not be infringed" don't seem to hold much weight, I don't know how you can write a sternly worded Amendment.
4.26.2008 2:40am
K Parker (mail):
kietharch,

Maybe where you live the items you cite are "self-incriminating", but I assure you that in the Land of the Free and Home of the Brave™ these things are completely legal to possess. (Please note that in making this assertion, I'm assuming that you're following common usage and by 'Kalashnikov' you actually mean an AK-pattern rifle, and not strictly the full-auto military variant that requires a tax stamp and additional background check, and is banned by state law in a few places...)
4.26.2008 5:34am
arbitraryaardvark (mail) (www):
When I was 17 in 1978 and began reading 4th Amendment cases, Brennan and Marshall were major influences on the court, whether in the majority or the dissent. The trend was to be expanding civil liberties.
While Scalia and Thomas are often pretty good on First Amendment issues (and EV has written here that the good old days of the 1st Amendment are now) they are pretty hostile to the 4th Amendment, and the trend has been to restrict 4th A civil liberties by applying the drug exception or the airplane exception or whatever.
I was recently stopped by a cop, validly arrested, and had my locked trunk searched "pursuant to arrest". It'll be interesting to see if i can find a lawyer wiling to take the case, since search incident to arrest does not etend to trunks.
4.26.2008 9:44am
Kelvin McCabe:
arbitrary - but there may be another exception lurking - what if it is your jurisdiction's policy to inventory search all cars when someone in the car is arrested? I know in Chicago for example, if any drugs are found in a car (no matter on whom) or if someone gets a DUI (and there is someone sober to drive the car away), the cars get towed as a matter of policy. The cops get to inventory search the whole thing and the defendant has to pay at a minimum $1,000.00 to get the car back. Of course, the police jurisdiction's themsleves decide their own "inventory" policy and so long as the police follow the policy, the inventory search is - according to most authority - completely legal. Even if the original tow was not necessary at all, which doesn't factor into the analysis of whether the police followed proper inventory procedure once the decision to tow has been made. Protects the police from all those stolen property claims and all that - As an added bonus the City gets the $1,000 not the criminal courts. The fine is adminstrative only - not punishment mind you.

You'd be surprised what can happen to a search-incident to arrest (in your view) that transforms it into an inventory search (in prosecutor's view). Which is to say nothing - other than the State realizing inventory argument is stronger so it becomes an inventory search. A limited search incident of the immediate area around you (the passenger compartment) may have happened, but then an inventory that gets them into the trunk took place. *wink wink*
4.26.2008 1:53pm
TGGP (mail) (www):
Bruce Benson's "The Enterprise of Law" has a good discussion of the exclusionary rule's reduction in convictions followed by court rulings designed to get around it during the "tough on crime" reaction. The big problem is that police unions would never fermit punishing officers for violating rights so that we could permit evidence to be shown in court. It has the added bonus of preventing them from breaking the law, discovering there is no evidence to bring to court and receiving no repercussions.
4.26.2008 8:09pm
mainfloorguy:
Prof. Kerr:

I read your post and glanced through some of the comments. What is your view of the New Judicial Federalism (NJF)? Well, maybe it was "new" during the Burger Court era, but the idea is the same. New Jersey, for example, has a Supreme Court that seems to regularly cut against police discretion through state constitutional jurisprudence. For example, the automobile exception in NJ requires probable cause and exigency. The NJ Court has pretty much tossed the search of an automobile incident to arrest exception. It seems to be accepted that judges do not like being reversed (but if you want a citation, the brief concurring opinion says it in State v. Lund, 573 A.2d 1376, 1385-87 (N.J. 1990) (Pollock, J., concurring) (adopting Michigan v. Long). Perhaps this will sound cynical, but I consider "rights jurisprudence" to be a way for State Supreme Court Justices to simply avoid reversal. Thank you for your comments.
4.26.2008 10:28pm
DDD:
Alias: Do you actually think Miranda does much to protect the rights it is supposed to protect (that is, the rights to counsel and against self-incrimination)? Seems it does a good job of what you cite it for: getting police to read people their rights after a formal arrest. At the same time, what's counted as custody or interrogation triggering Miranda rights has been defined in a very limited way.

So I'd say Miranda is actually another great example of my point: when the remedy is completely out of whack with the right, courts will tend to redefine the right in a way that minimizes the application of that remedy.
4.27.2008 2:21am
arbitraryaardvark (mail) (www):
arbitrary - but there may be another exception lurking - what if it is your jurisdiction's policy to inventory search all cars when someone in the car is arrested?
Kelvin: sure, that's Colorado v Bertine. There was no inventory search. The tow cost me around $120. I'm more concerned that the cop will testilie that there were facts supporting reseasonable suspicion - or rather that prospective counsel will expect this and be reluctant to take the case.
The cop was a jerk about the whole thing, so I'm eager to sue to push back a little, but my budget for these things is limited, so it will involve haggling with lawyers to try to get anyone to take the case within my budget.
4.27.2008 1:23pm
arbitraryaardvark (mail) (www):
DDD Alias: Do you actually think Miranda does much to protect the rights it is supposed to protect (that is, the rights to counsel and against self-incrimination)?

I think Miranda has coincided with a lessened use of the rubber hose in the back room, and has been somewhat effective.
On the other hand, cops have ways of retaliating if people actually use their miranda rights. I was once read my rights and was asked if I understood them. I correctly answered "no." After all, I had Mike Middleton for criminal procedure - if you think you understand your Miranda rights, you are probably mistaken.
Jailarity ensued.
4.27.2008 1:36pm
hattio1:
DDD says;

the exclusionary rule gives windfalls to guilty people whose 4th Amendment rights are violated, but does little to protect the innocent (except indirectly). This is a pretty obvious inversion of the purpose of the right against unreasonable searches


And why do you think it's inverted? Where in the 4th Amendment does it say that it only protects innocent people? Remember, a lot of the founding fathers were involved in importing tea without paying the tax. I.e., they were drug smugglers. They put the 4th in the Bill of Rights. Do you really think they did it to protect only the innocent?
4.27.2008 5:07pm
hattio1:
30yearprof Cites a recent Alaska Court of Appeals case which held that random requests to search a vehicle without probable cause and where the defendant doesn't know whether they are free to leave are unreasonable and violate the Alaska Constitution's right to privacy.

I can tell you 30year prof, that decision was both celebrated and unexpected among the defense bar. About three weeks ago, we all of a sudden started getting reasonable rulings out of the court of appeals. Fortunately, the Alaska Supreme Court has always been more reasonable when it comes to these issues, so they are fairly likely to be upheld.
4.27.2008 5:11pm