Given my opposition to Orin Kerr’s “technology neutral approach” to the application of search and seizure law to technological advancement, largely due to my belief that the 4th Amendment is a bundle of exceptions in search of rule, and that Orin’s approach will leave us with no meaningful protection at all, the question remains: If not tech neutral, then what?
Dan Solove at Concurring Opinions has written an article urging an alternative, called Fourth Amendment Pragmatism , to be published in Boston College Law Review this year. Here’s the abstract:
In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question – Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question – How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.
Step one is the tossing out of Katz’s “reasonable expectation of privacy” foundation, which Dan calls a “fruitless game.” He explains further in his introduction.
For a long time, I believed that with the appropriate understanding of privacy—one that is well-adapted to modern technology, nimble and nuanced, forward-looking and sophisticated—Fourth Amendment jurisprudence could be rehabilitated. I now realize I was wrong.
The entire debate over reasonable expectations of privacy is futile, for it is not focused on the right question. . . . We should sidestep the contentious debate about expectations of privacy—or about any other specific value as a trigger for Fourth Amendment protection. Instead, whenever a particular government information gathering activity creates problems of reasonable significance, the Fourth Amendment should require regulation and over-sight.
Having omitted a rather tedious analogy, it appears that Dan’s point is that expectation of privacy, “or about any other specific value as a trigger,” is subject to contentious debate. While true, it doesn’t explain why it’s the wrong question. Worse still, he merely swaps it out for a different phrase, Dan’s idea of a better trigger, “problems of reasonable significance.”
Application of the reasonable expectation of privacy test is increasingly difficult in a time of huge technological advancement. The fact that ordinary people have little idea of what does on inside all the electronics that they use daily, where they think things like their emails, text messages and IMs are private, but the harsh reality is that they fall fairly clearly within one of the many exceptions, renders the test unworkable. This gives rise to my problems with Orin’s approach, in that exceptions developed for bootleggers strain public expectations today. Essentially, our subjective expectations may be just as strong, but it’s just not objectively reasonable in light of technology, which has the power to access every aspect of our lives without the physical intrusion that was needed in the past.
But then, substituting a test that has some modicum of meaning for a test that is wholly incomprehensible, doesn’t move us away from the problem. What is meant by “problems of reasonable significance?” Who knows? To whom is the problem significant? There’s likely to be a wide divergence between the individual’s idea and the government’s. Dan supposed that it would be broad and inclusive, covering a large swathe of our life. I suppose that’s largely up to whoever gets to define this totally amorphous phrase. Given the history of both legislative and judicial definition of areas into which the police are given a free pass, Dan’s expectation may be a bit rosy.
It’s certainly encouraging for lawprofs like Dan to give some hard thought to alternative ways to frame 4th Amendment issues going forward, as we’re now on a trajectory that will provide no privacy whatsoever as we embrace each hour’s new technology, with all its shiny bells and whistles, without giving a second thought to how its use sends our private information to a computer somewhere in the bowels of the FBI building. It won’t be easy, however, to come up with a paradigm that works.
We are currently trying to jam square pegs into round holes, with the closest viable analogy substituting for legitimate protection of our privacy. This results in applying the rubric despite the rationale having absolutely nothing to do with the purposes for which the police are relieved of the obligation to obtain a warrant before accessing our private information. While the issue of the moment is GPS tracking devices placed on cars, we need to stop trying to fix the problems one device at a time as new technology is developing at such a rapid pace that each bit of tech will be like a horse and buggy by next week.
We need a viable framework that protects us from intrusion. Another approach, what Orin calls the Mosaic theory, and seems to me to be a variation on the “totality of the circumstances” approach that federal courts have long used to reach any result they want, seems to serve as a line in the sand beyond which even federal judges are just disgusted with the level of intrusion into personal privacy. And yet, it’s essentially an abdication of the warrant clause until it reaches the point of unbearable disgust. My hope is that we have a bit of protection before that point.
Dan Solove should be applauded for thinking outside the box, trying to resurrect the moribund concept of freedom from the government’s nose sticking into our undergarments (there’s an image for you), with his reasonable significance approach in lieu of a reasonable expectation of privacy. While the latter has its issues, at least it’s a phrase that offers some clue as to what’s covered. But that doesn’t mean there isn’t a better approach out there, and it’s encouraging that there are people out there trying to find it.
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It’s just my opinion, but I think the 4th amendment jurisprudence of the 1960’s was extremely damaging to the system. The exclusionary rule is inherently unpopular, if not unjust, and the net effect of applying it to the states was to encourage judges to think of a way of not applying it. Which is what they did.
Now, as you amusingly note, it is a jumble of exceptions in search of a rule. And the intellectual dishonesty behind that has infected every other area of the law.
The expectation of privacy “analysis” is just so much BS, and we’d be well rid of it, I suppose, but the disingenuousness and intellectual dishonesty will remain.
That’s the legacy of the wrong-headed attempt to exclude evidence in cases where it is inherently reliable, at least in terms of determining factual guilt or innocence.
John, John, John, what am I gonna do with you?
You’ve coflated no less than three completely different issues, the intellectual dishonesty of the exceptions to the rule, the efficacy of Katz and the propriety of the exclusionary rule. We agree on the former, but as to the latter two, you express hostilty without either reason or remedy. If you don’t like “reasonable expectation of privacy,” explain why and perhaps offer an alternative.
As for the exclusionary rule, there is no right without a remedy. You want it admitted? Then what’s the remedy for a constitutional violation? A stern talking-to?
Being totally unencumbered by any formal legal education or experience, I often apply the “gut doctrine” to law: if it feels wrong, it must be wrong.
So I read Dan’s article, and as always, he provides tremendous food for thought.
What I have not yet wrapped my non-lawyer’s head around is whether his approach would be more likely to remedy the problems I see with the application of “third party doctrine” or if his approach might result in fewer protections going forward. It seems to be a gamble.
If we allow judicial folks who are often clueless about technology or more inclined to be sympathetic to law enforcement to decide whether something is a problem of “reasonable significance” in isolation or in the aggregate, won’t they just continue to think as they have always thought about the problem?
It’s a terrible thing when as a member of the public who is concerned about protecting privacy and constitutional rights, I do not feel like I can trust either the legislature or the judiciary to get this right if we allow them to determine what constitutes a problem of “reasonable significance” that will trigger 4A protections. If they had asked me, I would have said that historical cell location data should trigger 4A protections and require a warrant. But they didn’t ask me. Then, too, Congress essentially ratified the illegal warrantless surveillance program. And these are the folks who are going to get more involved in determining what constitutes a problem of “reasonable significance” worthy of 4A protection?
I’m skeptical, but I will read his article again and contemplate my belly button some more.
I think your non-lawyer brain has wrapped around the problem pretty well. This is a very real problem, but its solution isn’t to create a new vague standard left to the same folks who chose to have the tail wag the dog. I beleive Dan is well intended, but I fail to see how this does more than move the problem in a circle.
Nor am I quite so ready to give up on the reasonable expectation of privacy standard, the third party problem notwithstanding. My thoughts tend to center around a return to the rule and lose all the physical world exceptions applicable by analogy.
Well, the short answer is that I’m not sure what the remedy should be. It’s a tough area. The 4th amendment proscribes “unreasonable” searches and seizures, and then says that no warrants shall issue except upon probable cause, implying that searches and seizures can be done without a warrant so long as they are “reasonable”. That didn’t stop the Supremes from holding that a search without a warrant was “per se unreasonable”, though, which given the language of the amendment would appear to be unwarranted.
There’s a Yogi Berra-ism in there somewhere.
Then again, the “per se unreasonable” rule is one of the biggest jokes in the law, since warrantless searches are effectively never held to be unreasonable.
One of the things I dislike most about the exclusionary rule is that it smacks of pro-government toadyism. To me, if the government doesn’t follow the law in prosecuting someone, tell them to f**k off, their case is dismissed. Next time follow the law.
But this is “too harsh”, so we leave open the option to continue the prosecution, but you just can’t use the “tainted” evidence. Bring in the jailhouse snitch. There’s some untainted evidence for you, right?
There’s an underlying idea that the government has a “right” to try its case, which I’ve seen some wayward posters indicate here, and which I have unfortunately heard many times from judges. It’s hard for me to imagine a more fundamental misunderstanding of the nature of a criminal prosecution. The government has no “rights” at all, at least not in the same sense that the defendant does.
Forfeiture of the prosecution is a more sensible remedy, a brighter line, and more conducive to intellectual honesty, because it keeps the focus firmly on government lawlessness.
That said, I think that searches and seizures that turn up what the police were looking for are presumptively reasonable and don’t violate the 4th amendment. I don’t think police, or anyone else for that matter, can always articulate a good reason for doing what they do in their job. There is an intuitive element that defies succinct explanation and the law should have room for that.
The way things are now, it’s almost the worst of both worlds. There’s all this babbling about “privacy” and all that, but the bottom line is that suppression never happens anyway, as a practical matter. The law is nonsense, and it is disregarded, but CDL’s have to make arguments like it’s going to matter. On the other side, there is a lot of dishonesty to fit into the “exceptions”, and they effectively always win, that breeds dishonesty across the board because it is rewarded.
The exclusionary rule is ironically both too timid and too hard to justify. In other words, it is a “remedy” that subtly favors the government, and was doomed to become illusory from the start because that is its animating principle.
In my view, Dan’s error is that “reasonable expectation of privacy” test is in fact the “problems of reasonable significance” test. It’s true that the name of the doctrine has a label that speaks of “expectations of privacy,” but that’s not how the test is actually applied: The test is actually applied by the Supreme Court in a way that does what Dan wants, but just not by a Supreme Court that shares Dan’s privacy-oriented policy preferences.
My approach is a very broad one, and it is hard to imagine many broader approaches to the Fourth Amendment’s scope. If we stick with the reasonable expectation of privacy test, it will always get stuck up on what “privacy” is. So sticking to it and dropping exceptions won’t cure the problem if the Court has an exceedingly narrow view of privacy.
Dissent and SGH’s problem stems from a more difficult issue — if the Court doesn’t really want a robust Fourth Amendment, it is hard to do much to force it to have one. So if we don’t try to broaden the Fourth Amendment, what’s left? Congress? A look at ECPA doesn’t give one a ton of comfort — see my ongoing debate with Kerr over his call for deference to the legislatures.
So (1) sticking to the reasonable expectation of privacy test isn’t likely to be good; (2) looking away from the courts isn’t likely to help much either.
So I have yet to see a better solution than the one I propose. Ultimately, I’m proposing a very broad 4th Amendment scope. Courts could certainly narrow it — but if courts were inclined to drink my Kool Aid, then they’d hopefully be sympathetic to my whole argument, not just use my test narrowly.
As for the vagueness of my test, even clear tests and language can readily be interpreted away by the Court. Just look at the 11th Amendment or the privileges and immunities clause. Language doesn’t really circumscribe the Court all that much — it doesn’t even limit the so-called texualists.
So I think these critiques are missing what I’m getting at. I’m not trying to design a fail-proof approach to the 4th Amendment that can work if the Court wants to undermine it. Instead, I’m proposing a new approach, a more flexible 4th Amendment with a much larger scope, so as to shift from what I call the “Coverage Question” to the “Procedure Question.”
In contrast to Kerr, I don’t think the current 4th Amendment jurisprudence by and large works fine. I think it is terrible. Nor do I buy Kerr’s Four Models argument. “Privacy” functions as more than a mere empty label. Although the word isn’t perfectly constraining, the Court does spend a lot of time talking about “privacy” and what it entails — and its decisions on privacy are consistent with a narrow and antiquated conception of privacy I call the “secrecy paradigm.”
The way I read the 4th amendment is that the minimum requirement for a search not to be unreasonable is the issuance of a warrant for the search. This definitely comports with the statement [from Katz, which SHG referred me to]: “a warrantless search is per se unreasonable.”
Supposedly the Bill of Rights was meant to ensure that only the Federal government could not infringe on these rights and so the Bill of Rights was ratified. Did that mean, at that time, that the states reserved the right to conduct warrantless searches? Article 4, Section 2 states that privileges and immunities of the people of the several states [which can only mean those states that ratified the Constitution] are granted to the citizens of each state. Where would these common rights be found, if not in the documents incorporating the United States? Hence the need for a Bill of Rights, esatblishing the minimums. Pending further study, that’s my simplistic way of reading it.
I am with John. It is the exclusionary rule that has done the real damage to all 4A-related doctrines (reasonable expectation of privacy, impoundment inventory, exigent circumstances, reasonable suspicion, you name it).
The primary safeguard of 4A values needs to be something other than relief from criminal liability for guilty parties. No matter what rule and/or exceptions one gravitates toward, the exclusionary rule will eat it out from the inside over time, unless there is some other remedy for detainments and searches against the innocent, which some other remedy makes the policeman quake in his boots with fear.
Criminal defense attorneys tend to have something akin to a vested interest in the exclusionary rule (and specifically in the exclusionary rule as the primary “teeth” in 4a), and that may make them part of the problem, rather than the solution.
Arguing against the exclusionary rule, as you and John, both of you not criminal lawyers, do without offering a remedy in its place is not merely fruitless, but extremely counterproductive. Ideas like this feed into those who would do away with the exclusionary rule and leave defendants with no remedy at all. If that’s not your purpose, then don’t go down this road unless you’ve got something concrete and valuable to offer.
As for us criminal defense lawyers who are part of the problem, perhaps our issue is that we cannot come back with a better solution that has any potential for acceptance, and thus stick with a partial soluition because it’s better than nothing. We have to actually live with the consequences of illegal searches, rather than non-criminal lawyers who can raise issue but come up empty on solutions.
With all due respect, if the Court(s) is (are) determined to undermine any 4th amendment rule, what good is it to come up with a new rule? Aren’t you just whistling past the graveyard at that point? Fiddling while Rome burns?
IF the Court(s) really doesn’t (don’t) want a robust 4th amendment? You needn’t have much question about it; they don’t.
They don’t care much for due process, confrontation, or compulsory process either. Not really.
The solution to the gutting of the 4th amendment in practice is the same as the solution to just about every other problem in the courts: bar prosecutors from being judges.
CDL’s – and maybe professors – only. And even from among them, only those that don’t want the job. Draft ’em, says I.
Oh, I have my own proposal for a better solution. I just didn’t mention it because I did not want to stray too far from the topic of your post. At any event, my solution does not mean that the exclusionary rule needs to go.
You have to remember here: the most important people that 4a protects are those never arrested, charged with a crime, etc. As far as that class of folks go: that is who I represent and you don’t, so if this comes down to expertise (and I don’t think it should), then I gots it and criminal def attys don’t. They represent the arrested and the charged. Wrong focus leads to bad solutions.
Aside from your comment saying nothing, this is where you head off into the oblivion that gets you banned from blawgs. Focus and be very careful about what you write next.
First, the phrase “with all due respect” is generally considered the preface to an insult. Second, barring prosecutors from being judges is stupid. Maybe you don’t have anything to contribute to this discussion and would do well to keep your thoughts to yourself?
Dan,
In my Four Models paper, I go through how the Supreme Court talks about the “reasonable expectation of privacy” test: It almost always makes a pragmatic argument about good policy, what I call the policy model of Fourth Amendment protection. Indeed, in some of those cases it explicitly states that an expectation of privacy is reasonable if it would be good policy for it to be reasonable because the invasion is sufficiently serious — see, e.g., Hudson v. Palmer.
Given these express statements, I’m not sure why you believe current Fourth Amendment doctrine is a conceptualist exercise in an abstract theory of privacy. I think the difficulty is that you’re focused very heavily on the small corner of doctrine covered by the third-party doctrine, rather than the test as a whole: You’re characterizing a narrow subset of the Court’s cases as if they were the caselaw as a whole. If you look more broadly, the picture changes daramatically, as I attempt to show in my Four Models paper.
Well, I didn’t mean to insult anyone, and the post is at most half serious.
I don’t agree with “stupid”; I will agree it’s not a realistic thing to suggest. It may be worth a passing thought in a serious discussion, though.
Beyond that I’ll follow your rather pointed advice and keep my thoughts to myself. Your blog, after all. Don’t want to get on your bad side, any more than I am already.
That’s very thoughtful of you.
I have this strange feeling that I’m Switzerland today. Chocolates, anyone?
Orin,
In many cases for the REP test, I have yet to see a “pragmatic argument about good policy.” And it involves more than the third party doctrine — see Greenwood, Ciraolo, Dow Chemical, Knotts, and many more “gems.” Of course, sometimes the Court also explains why its result is good as a policy matter, but it still is focused on privacy.
Moreover, the point of my essay is that the current REP test results in an all-or-nothing set of results. If there’s an REP, you get 4th Amendment protection. If not, then no protection. There are varying levels of 4th Amendment protection (all the exceptions to warrant and probable cause, Terry stops, etc.) but these only apply if there’s a REP.
In the cases where the Court finds no REP, I find it very hard to defend many of these results as a policy matter. As a policy matter, do we want absolutely no 4th Amendment protection or oversight of the police’s activities? No oversight for accessing third party records? No oversight for all sorts of highly invasive searches and surveillance? It seems to me that some degree of oversight and regulation is preferable to nothing at all. Thus, it seems silly to me that the debate often focuses on whether there will be ANY 4th Amendment protection rather than on what that protection should look like.
I’ve rarely seen good policy arguments for why there should be absolutely no 4th Amendment protection. The Court does argue policy when it comes to the special needs doctrine and exceptions to warrants and probable cause, but these policy debates occur after it has been resolved that the 4th Amendment applies.
In many cases, the Court doesn’t go into great depth about why, as a policy matter, absolutely no 4th Amendment protection is preferable to some degree of 4th Amendment protection, whether a warrant/probable cause or some lesser requirement. Instead, the Court goes on about how there was no expectation of privacy and therefore no problem at all. It strikes me as really strained to contend that the third party doctrine and other no-REP holdings are justified because there’s no problem. If there are policy reasons why warrant/probable cause is too high a standard, then the Court should hold that these law enforcement activities are covered by the 4th Amendment and then explain why the standard needs to be lower. But instead of doing this, the Court often just holds no REP.
Dan,
Two points.
First, the Supreme Court usually talks about policy in its reasonable expectation of privacy cases — and even when it doesn’t, we all realize, as realists, that policy is often driving the decisions anyway. As I put it in my Four Models paper:
********
As legal realists, we may rightly suspect that the policy model often drives outcomes in Supreme Court decisions. As we will see in the next Part, it is widely agreed that something akin to the policy model helps frame the basic goals of Fourth Amendment law and the reasonable expectation of privacy test.83 As a result, the policy model presumably plays a guiding hand in many cases even when an opinion itself is framed in terms of the probabilistic model, private facts model, and/or positive law model. At the same time, explicit reliance on the policy model turns out to be very common in the Supreme Court’s Fourth Amendment decisions.
*********
You seem to reject that descrption of current law, and instead accuse the Justices of not relying on policy: You then want the Justices to start relying on policy. But what if they’re relying on policy already, as they usually say they are? (And what about cases like Hudson v. Palmer, in which the majority says that the REP test actually is just a policy judgment?) It seems to me that your article is based on outrage that the Justices don’t do something that in fact they already do. As for why they don’t just rely *exclusively* on the policy argument, I make a pragmatic argument as to why that would be unadministrable in my Four Models paper (see section III).
Second, your preference that the Supreme Court should replace its no protection vs. warrant protection bifurcation with a sliding scale of protection is a point that Anthony Amsterdam and others (including me) have addressed: Given the extraordinary diversity of possible facts in Fourth Amendment cases, it’s just too hard to categorize everything and manage all the categories. It would be a mess; there is no reference class to work from, and every set of facts would require new catgeorization. It’s just too complicated. So the Court instead has the traditional common law choices — no protection versus probable cause — with a very occasional reasonable suspicion intermediate standard in some rare cases.
That brings us to our foundational differences, I think. I tend to think that the administrability of Fourth Amendment rules is a very important concern, and that a regime of Fourth Amendment law that isn’t reasonably clear from the cases is a nonstarter. As a result, I think the no warrant versus full warrant bifurcation is a reasonable one: It gives the police reasonable clarity as to what they can and can’t do. As a practical matter, it’s probably as good as we can do. In contrast, you tend to think that concerns about administrability are overstated: You generally believe that there must be a way that it can be figured out somehow.
Orin,
I accept your description of how things work as outlined in your four-models paper. I also accept your statement that in actuality, judges apply a policy approach even if they do not explicitly say that they are. But I reject your conclusion that a multi-model approach is actually a useful thing and more protective of rights.
As a citizen, I should be able to know whether, under the law, I have a reasonable expectation of privacy with respect to information-gathering procedures by the government. But I can’t know that — and hence, cannot be secure in any right — if determination of REP varies wildly as a function of model, district or magistrate. This is just too important to be allowed to vary so wildly at the lower level. Would you accept such a multi-model approach to the First Amendment? If we can have a brighter line with the First Amendment that can be applied to new technologies, why not the same for the Fourth Amendment?
That said, as a matter of policy, I clearly prefer Dan’s approach to the extent that it might address what I view as some horrific decisions as the courts ran amok with the third party doctrine. If we focus on information collection by the government involving people who are not suspected of having committed any crime, then why should the government be able to just access my information without any judicial oversight? In my opinion, something went awry after Katz and we either need a do-over or a new constitutional amendment or federal statute protecting privacy from warrantless government intrusion.
But that’s just my nonlawyerly policy position. Your mileage will undoubtedly vary. 🙂
Dissent,
As a citizen, you know when you have a reasonable expectation of privacy when the courts tell you — they announce a rule, and that rule sticks, to cover those facts. At that point there is no fluctuation or uncertainty: The rule is the rule.
As for the First Amendment, it is often framed as being about multiple models. See for example, this coevrage of a talk by Mark Tushnet on Four Models of the First Amendment.
As a practical matter, it doesn’t work this way. No two sets of facts are the same; no two judges see the same set of facts the same; the rule is the rule, and that’s why courts created exceptions. And let’s not even talk about variables created by testl
yingmoney, where an artfully expressed vagary can be easily used to alter the impression of reasonableness, with the blessing of a judge disinclined to require more than an agent’s say-so to deny the motion.If a rule was a rule, then we have far fewer suppression hearings because a warrantless search is per se unreasonable, and all that effort put into finding a way around the rule wouldn’t be needed, freeing up time for deep thought and a daily round of golf.
Scott,
Whatever you think of the uncertainty of current law — based on the close calls that come up in litigation after a case is over — I think it’s much more certain than what we would have if individual judges regulated that which seems to them to be of “reasonable significance” with whatever degree of regulation struck them as “reasonable.”
I agree, which is my issue with Dan’s test. At least I can argue, with some small degree of comprehension, why there should be a reasonable expectation of privacy. As for “reasonable significance,” I wouldn’t have a clue where to start as I don’t have clue what it means. No doubt some court will define it, but that’s unlikely to work out well for me.
Putting aside the gymnastics performed by judges and agents (and they’re all very special to me), I seek a return to the core fo the Fourth Amendment under Katz, that every warrantless search is per se unconstitutional, and the only exceptions to the rule would be plain view, consent (with video or signature) and actual exigency. Any search where there is opportunity to obtain a warrant would require a warrant. In other words, the rule would be that a neutral magistrate determines if probable cause exists rather than the agent searches and the judge later finds a way to except it.
Here here [whatever the heck that really means.] Plain view {the unaided eye test rules}, consent and actual exigency, otherwise a warrant, I could get on board on board with that -if we absolutely must compromise that’s a reasonable compromise. It’s such a simple way to approach what was spelled out in a simple document void of pages of boilerplate.
And as far as my expectation of privacy [why did Brandeis even have to state the expectation?]goes, the Constitution tells me that I have it 24/7.
Although I may be mistaken, I believe the most recent 4th flare up on these blawgs arose after the 9th’s decision about GPS on a suspects vehicle. The question I had was couldn’t Law Enforcement had gotten a warrant to start with? The investigation took a while, didn’t it? They couldn’t articulate why they suspected the person was a drug dealer? What did they do prior to putting a tracking device on his vehicle – pull his name out of a hat?
I actually agree with Dave W. that there needs to be a better deterrent to police. The exclusionary rule does well to try to right the wrong for the individual that has been wronged, the problems is even if the 4A were as broad as we would like it and the exclusionary rule applied broadly, the individual officers don’t often give much of a shit about whether their busts turn into convictions. And the reality is, they know that the state of the law and the judiciary as it is, nothing’s likely to get tossed, so search away. Fuck a warrant, fuck consent, fuck exigent circumstances. If you find dope, roll the dice on the suppression motion and assume you’ll have a friendly judge who will jam your search into an exception. If its a dead body, you’ll feel plenty justified about lying your way out of the bad search anyway. And this is to say nothing of the millions and millions of people who have their 4A rights violated when they’re doing nothing wrong and who, therefore, the exclusionary rule is worthless.
I agree with Dave. The police need to quake. Criminal liability, potential loss of job, easier civil liability, something. Dave says he’s got a plan, I think its worth thinking about because the goal of his plan, to actually deter the officers, is likely to do more to make the 4A a reality then even a really well executed exclusionary rule.
What a pointless comment. It’s like arguing that innocent people shouldn’t be convicted. Great idea, but how do you propose to accomplish it, because empty, angry rhetoric goes nowhere without a means to do better. Loss of job? Just a greater motivation to lie. Civil liability? Useless for the defendant. What about those searched but not arrested? Less useless, but 5 years for $5,000 damages isn’t going to help anybody (or get anyone a lawyer on contingency).
Plenty of angry rhetoric, but without a better idea, it’s a waste of space.
Defining a goal is not pointless, it is the start. Solutions don’t always spring fully formed. Instead, they require discussion and multiple people thinking about how to define the problem and then figuring out ways to solve it. The difference is you define the problem differently than Dave or I do.
I think the problem is that police routinely violate people’s (not just people who ultimately wind up as criminal defendant’s) 4A rights. You seem to think the problem is that those violations continue to yield admissible evidence that should have been suppressed. You want a better way to see to it that the evidence that should be suppressed is; my point is that even accomplishing that doesn’t provide any legitimate deterrent to LE to stop violating people’s rights.
Also, you brush off civil liability so easily because you frame it in terms of what is currently available. Obviously, if you wanted to make civil liability a better deterrent you can make it easier to get passed summary judgment, end qualified immunity and increase punitive damages.
So, no, it isn’t pointless to talk, in the context of a discussion about the fact that what we have now isn’t working, about what the definition of a “working” system is. Ours differ.
There’s no disagreement that the people searched and seized, but subsequently released because they had nothing, should have recourse. That’s a no-brainer, but it’s also a different problem from the person arrested on a bad search. The person arrested doesn’t need a civil action for damages so he can be the wealthiest guy on the cellblock.
As for civil liability, there’s a laundry list of reasons why it wouldn’t work, even if we eliminated qualified immunity, summary judgment and required the cop to pay himself rather than shift it to the municipality. Most searches and seizures have minimal damages, and punitives (on top of the rest of the list of changes that would be necessary) would likely be the end of police doing the job we need of them, as well as unlawful searches, as no cop would risk personal liability for punies for a paycheck. It makes no sense.
The people subsequently arrested because of a bad search are politically unpopular so it makes more sense to me to try to protect the populace at large rather than single out the people doing something wrong for protection because this allows the law & order types to spout off the “if you’re not doing anything wrong, you have nothing to worry about” nonsense. If we deter bad searches all together (however that is accomplished and I don’t have a great answer for that) that trickles down to those who are doing something wrong because less bad searches means less prosecutions that rely on bad searches.
As for your arguments against increased personal liability for violating people’s rights, we will have to agree to disagree. I’m OK with the police erring on the side of not doing a bad search and at least getting a warrant whenever possible (which would probably be the practical effect of eliminating qualified immunity, they’d always get a warrant so as to absolve themselves of the blame).
Well, I’m just a died-in-the-wool advocate for the politically unpopular. You PDs can hang with your rich and well-connected pals, while us private CDLs minister to society’s outcasts.
I think you get my point, but just in case, I’m talking about more protection for the politically unpopular without explicitly saying we are protecting the politically unpopular. Who can argue with protecting the citizenry at large from illegal S&S? If the remedy is not tailored only to the criminal defendant maybe it gets broader support and maybe the citizenry at large starts to realize “HEY! All these exceptions are complete and utter bullshit when they are applied to me!”
And, incidentally, you ARE my rich and well connected pal.
Then you’re in more trouble than I thought.