The Social Utility of Suppression

In a comment to my recent post about the cellphone/smartphone cases coming before the Supreme Court, Wurie and Riley, which I believe are huge and potentially paradigm shifting cases that the Supremes are ill-prepared to handle (and notably, moved the goal posts when they recast the issue presented), Pvine raised a very troubling point:

In light of recent Supreme Court decisions (see Fernandez for a very recent example), I don’t believe that the majority of the Court still adheres to the Warrant Preference Rule. As has been stated time and time again (especially in the last decade), the ultimate requirement of the 4A is reasonableness. The break hasn’t been definitively made between the Warrant Clause & the Reasonableness Clause, but I believe the Court is really close to severing those ties.

Scary as his (he could be a she) observations may be, he has a good point. There appears to be a trend to read the 4th Amendment as having two independent clauses, the Warrant Clause and the Reasonableness Clause.  And if the latter exists, the former serves no purpose.

This concern is raised in an upcoming Harvard Law Review article by Richard Re, who is currently guest-blogging at the WaPo Conspiracy.

In my first post, I explained that exclusionary doctrine is in flux. Canonical cases like Mapp v. Ohio suggested that “all” unconstitutionally obtained evidence must be suppressed, but Herring v. United States and other recent cases counsel against suppression when police act in “good faith.” So, which principle should be the exception, and which the rule?

Current doctrine approaches this question based on an evaluation of social costs and benefits. This post will criticize that prevailing approach. The basic problem is that the Court’s cost/benefit analysis founders for want of empirics.

Yes, empirics.  The basis for the exclusionary rule is that it is intended to serve as an incentive for police to obtain a warrant or lose the evidence.  As Re questions, there is no empirical basis for this proposition, and while we rely on suppression as the cure for a violation of the 4th Amendment, we don’t actually know whether it serves the rationale that justifies it.  Scary stuff.

Anecdotal experience suggests that it’s a lousy incentive to compel the police to obtain a warrant.  Part of the reason may be the myriad exceptions, as many believe (myself included) that they have swallowed the general rule that a warrantless search is per se unconstitutional, and because they are too hard to follow.  If lawyers are contentiously writing thousands of words about them in briefs, what are the chances a police officer will make a correct assessment on the street? Clarity has its virtues.

But what if we overlay a new proposition on the 4th Amendment, detached from all other exceptions good or otherwise, based upon this phrase: “…against unreasonable searches and seizures….”  The argument is that the word “unreasonable” wouldn’t be in there if it had no purpose, and the only purpose it could have is to distinguish the searches and seizures subject to the 4th Amendment from those that are not. Which are not? The “reasonable” ones.

Cop: Hey Sarge, you think it’s reasonable to search?

Sarge: Well, I dunno. Sure, why not? Search the mutt.

Cop: Got it. Okay, Joe, green light. Pry the sucker open.

At this point, the discussion usually devolves to civil actions against the police, with personal liability to drive the point home, for violating a person’s right to be free of unreasonable searches.  After all, if the incentive for suppression is to prevent police from violating a person’s rights, what better remedy than to make the cop suffer the consequences of a wrong decision?

As much as personal liability would certainly appear to serve as a far stronger incentive than suppression, which I fear would not survive empirical analysis, because cops are far more concerned with twenty and out than getting the bad guy, there are legitimate concerns about the social utility of such a rule.  As much as we want a means to curb violations of constitutional rights, we also want a means of making sure that people are protected from crime and criminals are caught.  People sometimes forget that crime is a bad thing.

And a money judgment for a violation of constitutional rights, even if the cop is personally liable, isn’t as useful to a guy serving life in prison as some may think.  We also tend to forget, in an age where innocence has been extolled as a justification for angst, that the guilty are entitled to constitutional rights too.  Much as I appreciate the Innocence Project, an unfortunate offshoot is that an over-emphasis on the system’s toll on the innocent leads us to forget that the Constitution applies to everyone.

But if there is a separate clause in the 4th Amendment that exempts its application to “reasonable” searches, then we’re left with a hole big enough to drive a military surplus tank through.  “Reasonable” is the subjective escape hatch that allows anything and everything a judge finds suited to her sensibilities, her end result.  In other words, the ends really do justify the means.

When a cop’s hunch turns up a kilo of dope, it’s really hard to decide, after the fact, that he was unreasonable. The pressure to approve a well-founded but warrantless search is enormous.  Similarly, the judge who suppresses that kilo, when the only thing preventing her from approving it is her own definition of reasonableness, will be reviled for letting the criminal go free.  Want to bet how many judges will be willing to shoulder that burden at the risk of their careers and reputations?

And bear in mind, on appeal the burden shifts to the defense to show that it was unreasonable.  Such arguments are invariably rhetorical, and proving that the judge’s decision that a search was reasonable is a monumentally difficult task. Maybe even impossible, except in the most extremely arbitrary cases, and even they will depend on the cops being honest enough in their testimony to admit that they had no reason to search at all. That too doesn’t happen with great frequency.

There are some potentially rocky times ahead for the 4th Amendment should this trend continue.  As much as we can’t pretend the word “unreasonable” isn’t in there, recognition of an independent reasonableness clause will take a barely breathing warrant clause to slit its throat.  Reliance on the black letter rule, that a search without a warrant is presumed unreasonable, is the only doctrinally sound way of overcoming this problem, and as Pvine noted, it’s fallen into disfavor.

If this trend doesn’t stop, we can kiss suppression good-bye, not to mention civil liability regardless of who pays.  Remember, a right without a remedy isn’t a right, and a right as controversial as this, dependent on someone’s interpretation of the word “reasonable,” is as good as one without a remedy.  It’s got to stop.

2 comments on “The Social Utility of Suppression

  1. pvine

    As it stands right now, the Court has whittled the exclusionary rule that it created in Weeks and applied to the states in Mapp down to the following proposition: Evidence obtained by the cops in violation of the 4A’s “reasonableness” requirement is subject to suppression only if the cops conduct in obtaining such evidence is not simply “unreasonable,” but is flagrant, outrageous, egregious misconduct.

    By interpreting the Court-created exclusionary rule in this manner, the Court has narrowed the rule such that it coincides with the fundamental fairness principles of due process. (For a more detailed analysis of this limited due process based exclusionary rule, see my comment in response to Richard Re’s most recent WaPo Conspiracy post of March 8. [Ed. Note: For a more detailed analysis? Since when do commenters get to send my readers to other sites to learn of their more detailed analysis?])

    But for Mapp, the exclusionary rule (created in Weeks) would not apply to the states. Thus, it is important to look at what the cops actually did in Mapp, as these facts form the basis for the Court’s holding. It is clear (at least to me) that the cops conduct in Mapp was not merely “unreasonable,” but was conscience-shocking (as that term was used in Rochin’s due process based exclusionary rule).

    As to the Wurie and Riley cases, it is interesting to note that even if the Court determines that the search in Riley was “unreasonable” (something that will probably not occur if the Court applies my proposed test) that will not benefit Riley because on remand the California courts are (for many of the reasons stated by SHG) certain to find that the cops acted in “good faith” belief that (under existing precedents) they were entitled to search Riley’s cell phone without a warrant, without exigent circumstances, and without consent.

    Very interesting times!

    1. SHG Post author

      Jeez, give a guy a nod and the next you thing you know, he’s taking over the place. Your concern going back to Mapp is, I think, a bit misplaced, as no one was thinking at the time of a separate reasonableness versus warrant clause determination. To look in retrospect isn’t illuminating, unless the purpose is to conform post hoc the rationale with the current trend. That may be important for someone looking to conform trends with precedent, but it’s facile.

      Mapp was not a “reasonableness” decision, and it never will be. And shouldn’t be. Re is playing revisionist law, which is fine for a lawprof, but doesn’t really do much to further our application of the 4th Amendment.

      If there is going to be a whole new “reasonableness” approach that removes warrantless but “reasonable” searches and seizures from 4th Amendment analysis, then let’s be honest about the break from precedent, issue a death announcement and put the warrant clause out of its misery.

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