Digital Is Different: Cleaning Up the Doctrinal Insanity of Search and Seizure Law

The Riley/Wurie decision represents what I describe as a clean break from search and seizure law as it has grown since Weeks was decided 100 years ago.  At Slate, Judge Richard Posner poo-poos the decision:

The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

Apparently, nobody told Posner he’s not on the Supreme Court, so his opinions may not carry quite the same weight. But that’s not quite the core of his complaint. Rather, it’s the insane state of Fourth Amendment law.

The abiding puzzle of “search and seizure” is the insistence of the courts, including the Supreme Court, that the Constitution requires search warrants in all but emergency circumstances, in order to protect what we now call “privacy.” That is ahistorical. The Fourth Amendment protects people against unreasonable searches and seizures, but it does not require search warrants; on the contrary, it limits them, by requiring that they be based on probable cause, on oath or affirmation by the seeker of the warrant, and on a particularized description of the premises to be searched and the items (usually contraband) to be seized.

In describing Posner’s challenge to the puzzle, Will Baude refers to Justice Scalia’s concurrence in California v. Acevedo, an automobile exception case that offers perhaps the best description of how the Supreme Court created a general rule, that a warrantless search was presumed unconstitutional, and then an irrational, irreconcilable patchwork of exceptions to the Fourth Amendment to circumvent the general rule.

 Justice Scalia, concurring in the judgment.

I agree with the dissent that it is anomalous for a briefcase to be protected by the “general requirement” of a prior warrant when it is being carried along the street, but for that same briefcase to become unprotected as soon as it is carried into an automobile. On the other hand, I agree with the Court that it would be anomalous for a locked compartment in an automobile to be unprotected by the “general requirement” of a prior warrant, but for an unlocked briefcase within the automobile to be protected.

Although the Fourth Amendment does not explicitly impose the requirement of a warrant, it is of course textually possible to consider that implicit within the requirement of reasonableness. For some years after the (still continuing) explosion in Fourth Amendment litigation that followed our announcement of the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), our jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone.

I remember Acevedo only too well. I was in the midst of an automobile exception case when the decision came down and I got a call to come to court the next day. The judge, with a gleam in her eye, announced that Acevedo destroyed my argument, and my motion was denied. DENIED.  I naturally disagreed completely with the judge’s reading, but it took another court to conclude I was right.

Posner, like Scalia in Acevedo, calls out the insanity by falling back on the politicized view that the Fourth Amendment doesn’t demand a warrant, but merely reasonableness. That would mean that Riley/Wurie isn’t a watershed decision, recognizing at the Supreme Court level that digital is different, but rather a routine application of reasonableness given a different fact pattern.

This is dangerous stuff. Regardless of whether you’re inclined to adopt their political view of the Fourth Amendment, cases, and the lives they represent, are decided based on the rubric of the exceptions developed over the past 100 years. Like it or not, the exceptions are treated as categorical, the mere utterance of a word being sufficient to eviscerate people’s rights.

Even if Posner and Scalia, safe within their judicial robes, don’t realize it, the Department of Justice does.  From Mike Masnick at Techdirt:

Meanwhile, at the DOJ, they’re already plotting on ways to get around this ruling by seeing how far they can push the “exigent circumstances” exception:

Ellen Canale, a Justice Department spokeswoman, said the agency would work with law enforcement to ensure “full compliance” with the decision.

“We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant,” Canale said.

Notice how the focus is on figuring out more ways to search phones, not more ways to make sure they obey the law. This doesn’t make me feel any safer. Quite the opposite.

If Posner and Scalia want to reduce the Fourth Amendment to what they perceive as its core meaning, reasonableness, then the first step is to wipe away the myriad categorical exceptions to the general rule that a warrantless search is presumed unconstitutional.  The DoJ is taking the view that the worst Riley has done is eliminate their ability to use the “search incident to arrest” exception to gain automatic access to people’s smartphones, meaning that they still have all the other exceptions available to accomplish the same result.  It’s hard to let go of law that make your job easy.

As Masnick also notes, the cops can’t conceive of a world where they can’t do as they please.  First, Jim Pasco, the executive director of the Fraternal Order of Police, explains:

The arresting officers “want to get into that phone and see if they can get the other guy,” he said in an interview. “Or gang situations. They communicate almost exclusively by phone. There’s more at stake here than due process. It’s public safety.”

And second:

Besides the delay, one problem is such a warrant might not be approved, said Bill Johnson, executive director of the National Association of Police Organizations, which counts about 240,000 rank-and-file police officers as members.

“You have to make that jump: I bet he’s got a bunch of stuff on his phone. And that’s not good enough,” he said. “The officers are really going to have to point to something specific that ties that phone or that suspect’s use of phones to the commission of a crime.”

If we embrace the Posner/Scalia understanding that the Fourth Amendment’s only limitation is reasonableness, then one has to wonder whose reasonableness that might be. Theirs? Pasco’s and Johnson’s?  The general public’s?  Each individual trial level judge’s, as viewed through the eyes of appellate judges?

No one would ever have a clue where the outcome would be, and what rights, if any, exist.  Given the dynamic of search and seizure, it would be inconceivable that police wouldn’t simply seize and search, and let the prosecution come up with some magic words and a story to make it appear reasonable to a judge later.  The worst that would happen is suppression, leaving them in the same position as would be the case if they hadn’t searched and seized in the first place.

Sure, they could get a warrant, and given that they’re handed out like candy, complaints about the burden of a warrant requirement sound totally lame, but the mere act of asking is more effort than most cops care to put in. It’s the only thing saving grace of the Fourth Amendment.

Fortunately, the Posner/Scalia view is neither universally accepted nor easy to use, and the Supreme Court has shown a preference for categorical rules that serve to inform cops on the street and judges on the small benches.  That these rules had grown irrational and unworkable given 100 years of judicial sausage making is clear; that Riley throws the sausage away when it comes to the digital world seems similarly clear.

That the cops, the DoJ and many judges will fight to maintain the status quo of categorical exceptions is beyond question.  This is merely the first battle in a war to take back the Fourth Amendment to the Constitution.  There’s plenty of fighting left to be done.

2 comments on “Digital Is Different: Cleaning Up the Doctrinal Insanity of Search and Seizure Law

  1. David Woycechowsky

    I liked the argument made in the Davies article that Will Baude cited to the effect that back in pre-Constitutional times there was no such thing as an unwarranted, non-tortious search, so the Drafters were not even considering the possibility of unwarranted searches.

    I think the textual structure of 4A supports that. Why would government agents ever have bothered with a warrant (in 1800, in 1900, in 2000), and its attendant pc and particularity requirements, if “reasonableness” was all that was ever required in the first place? The whole amendment just doesn’t make sense when the warrant clause is not read as something mandatory.

    1. SHG Post author

      I agree. If “reasonableness” is the touchstone (combined with qualified immunity) and there is no warrant “requirement,” then the rest of it largely is meaningless surplusage.

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