Today is the Tenth Anniversary of this blog.
What follows are 13 “realities” of Fourth Amendment adjudication that I see from having read so many Fourth Amendment cases for so long. This is § 2.1 of the new edition, forthcoming in late December, with 90 footnotes which are omitted here.
1. There no longer are any “technicalities” under the Fourth Amendment.
a. All alleged errors in the creation (e.g., actual probable cause), issuance (i.e., scrivener’s errors, including particularity), and execution of a search warrant (i.e., excessive search), are subject to a rule of reason [my words, cases don't say it that way, but this book does]; this is the essence of the reasonableness requirement.
b. “Objectively reasonable” or “objective reasonableness” is the second most important phrase in the Fourth Amendment case law after “probable cause.” It is how the “reasonableness” requirement is applied, it defines application of all the totality of circumstances standards, reasonable suspicion, the good faith exception ‒ nearly everything.
c. Thus, all questions regarding the construction of affidavits and warrants must be viewed from the perspective of encouraging the police to seek search warrants. Even fundamental mistakes can be in good faith and not prejudicial on the totality of circumstances.
d. Any alleged error requires that the target of the search was somehow “prejudiced” by what happened. Merely finding incriminating evidence is not prejudice. This is a “No harm, no foul” rule. Without the police finding something, we wouldn’t have a criminal case.
e. The Supreme Court would sometimes strive for “bright line rules” to make the Fourth Amendment easier for police to apply on the street, but that proved impossible in much of Fourth Amendment litigation because many situations defy bright line rules; e.g., “reasonableness” and “totality of the circumstances.” Even Payton, crying out for a bright line rule, ended up with the Fourth Amendment drawing “a firm line at the entrance to the house.” (See also “core values” under No. 4.)
2. Exclusion of evidence for a Fourth Amendment violation is the exception rather than the rule. Ending in the 1970’s, it seemed the rule rather than the exception, and that’s long over.
a. Exclusion has to result in “appreciable deterrence” of police conduct or misconduct to be applied. Where there is only marginal deterrence in a case means the exclusionary rule should not be applied.
b. The system benefits of deterrence must outweigh the costs. What “benefits,” exactly? Presumably adherence to the Fourth Amendment.
c. Therefore, there now is a good faith exception for warrantless searches.
3. The good faith exception applies to the finding of probable cause for the warrant. It was not, however, intended to apply to issues regarding the execution of warrant since the good faith exception was originally created to cure good faith probable cause errors in issuance of search warrants.
a. A court should consider probable cause first before considering good faith lest the Fourth Amendment stagnate, and no one would ever know whether a given set of facts constitutes probable cause.
i. It is part of the judicial function to decide probable cause, not decide that the question doesn’t need to be decided. When courts avoid deciding probable cause questions, they have deferred deciding probable cause questions to the police.
ii. Without deciding probable cause, police will continue to be able to arrest or search on similar facts without fear of civil liability because there will always be qualified immunity and no suppression of evidence. Therefore, courts should decide the question of probable cause before moving to the good faith exception.
iii. Deciding good faith without deciding probable cause should be the exception rather than the rule. In some jurisdictions, it’s not, and this is an abdication of the judicial function, exalting form over substance, and making the good faith exception more important than probable cause.
b. If the question of probable cause is difficult, the preference for warrants (see No. 1(b)) should lead a court to conclude that, even if there was no probable cause, there clearly was at least a good faith basis for finding probable cause in the first place and the product of the search warrant should not be suppressed. (This is what happened in Leon.)
c. The conduct of the officers must be “objectively reasonable,” referring back to the Fourth Amendment qualified immunity cases.
d. Of the four exceptions to the good faith exception under Leon, all are based on aggravated situations. Only the Franks “knowing and reckless falsity” has any real current value. The other three are becoming subsumed into the good faith exception in practice by cases that never factually measure up.
e. The Supreme Court says it hasn't yet applied the good faith exception in warrantless search cases. [But what is Davis?]
4. Privacy and trespass: Fourth Amendment “core values,” the “reasonable expectation of privacy” and United States v. Jones:
a. The “core values” of the Fourth Amendment should have the highest value for privacy protection: “persons, houses, papers, and effects.”
i. Katz involved a conversation in a telephone booth that was not an “effect,” but it was still found protected.
ii. Stop and frisk is sui generis because persons almost seem to have become a lesser “core value” there because of the overwillingness of some courts to find detentions objectively reasonable in drug cases. It also depends upon whether the police go inside pockets during a frisk or inside clothes (part of the “person”) or belongings (“effects”) during a search.
b. Property interests are still important.
c. A “search” is a government intrusion under the Fourth Amendment under Katz and Jones if:
i. the intrusion constitutes a common law physical trespass or invades a “constitutionally protected area” enumerated in the Fourth Amendment: “persons, houses, papers, and effects”;
ii. is done “for the purpose of obtaining information,” or is “an attempt to find something.”
iii. the “reasonable expectation of privacy” test survives even where there is no physical trespass.
iv. Thus, the litigation possibilities are seemingly endless. It does expand the zone of privacy.
5. The Fourth Amendment prohibits “unreasonable searches and seizures” but unreasonable by whose or what standard? What is objective reasonableness, and how can anyone ever really define it? Courts must take care to protect the objective reasonableness standard, no matter what the judge’s personal belief about crime and punishment and what police mistakes can be permitted in the name of bringing whom they think are the apparently guilty to justice.
6. Just as the defense can raise any ground to attack a search, the prosecution can raise any ground that supports it. The same facts may raise multiple exceptions to the warrant requirement, and any one of them can support the search even if some other rules were clearly otherwise violated. When litigating an exception to the warrant requirement, be mindful of the fact the prosecution carries the burden of proof (see No. 10, infra), and some exceptions are easier than others for the prosecution to prove. Examples:
a. Search of a vehicle may be valid under the automobile exception with probable cause, plain view, search incident (more difficult under Gant), a protective weapons search, inventory or “community caretaking function” search, or consent.
i. For example, a search incident may be invalid because the suspect is away from the car and its contents (as in Gant), but valid on probable cause under the automobile exception or because of a true inventory.
ii. The inventory search doctrine is, however, purely a legal fiction, and prosecutors have a duty to prove it was necessary, and defense lawyers have a duty to show that it is a pretext for an investigative motive. It is not carte blanche for police to conduct an investigative search, which a significant number really are, and how they did the inventory can help prove it.
b. Search of a person maybe valid as a frisk, search incident to an arrest, inevitable discovery, such as on booking into a jail, or consent.
c. Search of a dwelling may be valid by plain view during a protective sweep, an entry based on exigency, or consent.
7. The exigent circumstances exception can permit entries into the home on even a slight showing. But these cases should be narrowly construed based on objective facts and reasonableness if the sanctity of the home truly is a “core value.” The warrant requirement should never be so easily obviated unless the exigency is both serious and articulable and not speculative.
8. There are three types of police-citizen interactions:
a. arrest, which must be supported by probable cause;
b. brief investigatory stops, which must be supported by reasonable articulable suspicion;
c. brief encounters between police and citizens, which require no objective justification.
9. “Different interests are implicated by a seizure than a search. ... A seizure affects only a person’s possessory interests; a search affects a person’s privacy interests.” A seizure and a search are separate constitutional events. While courts recognize de minimus intrusions often are unreasonable, some lower courts have been more readily finding seizures de minimus during traffic stops than searches because of the nature and duration of ordinary traffic stops. That doesn’t make it right.
10. Burdens of going forward, production, proof, and on appeal:
a. Going forward: The defendant bears the burden of raising a search and seizure issue in a motion to suppress.
i. Search and seizure without a warrant: If the search was without a warrant, that is all that is required to be stated, and the burden shifts to the prosecution to justify it.
ii. Search and seizure with a warrant: If the search was with a warrant, the defense usually has to make some kind of showing that some legal requirement was violated to justify a hearing on a motion to suppress.
b. Standing: The defendant bears the burden of pleading and proving “standing.”
i. If the defense pleads it and the prosecution does not respond to it, standing must be taken as admitted.
ii. If standing is contested, the defendant has to go forward and show he has standing.
iii. Sometimes standing may be a difficult question. If so, and the search and seizure was valid, and the court can decide the merits without having to decide standing.
iv. The defendant does not have to testify to prove standing. Sometimes it can be proved from the prosecution witnesses or concessions in pleadings. If the defendant does testify to standing, he is free to do so without that testimony being used at the trial.
c. Warrantless searches: The prosecution bears the burdens of production and proof by a preponderance of the evidence to justify any warrantless search and seizure. Facts should be required at the suppression hearing and not bare conclusions, just as in issuing search warrants, otherwise the fact finding turns into rubber stamping the police.
d. Searches with a warrant: If the search was conducted under a warrant, the warrant is presumptively valid and all doubts are resolved in favor of it and probable cause is often easily shown and subject to the good faith exception. The defendant carries the burden of proof, except as to over-seizure which becomes a partial warrantless search.
e. Good faith exception: The prosecution carries the burden of going forward to raise the good faith exception and to prove it because it is in control of the facts. Its burden should be by the preponderance of the evidence on the facts; often the bulk of what is being decided is a question of law–was it objectively reasonable.
f. Inevitable discovery or lack of taint: The prosecution bears the burden of proof.
g. Standard of appellate review: The standard of appellate review of findings of reasonable suspicion and probable cause is de novo with the underlying historical facts subject to the clearly erroneous standard. Thus, as every other area of the law: findings of fact, clearly erroneous; conclusions of law, de novo because probable cause and reasonable suspicion are conclusions of law.
11. The Fourth Amendment doesn’t care about city, county, or state lines or state or local law. In fact, where there is a violation of state or local law, the case could go to federal court and make those violations irrelevant. This has led to a “reverse silver platter” where state law violations lead cases to federal court instead.
12. Common law, state constitutions, statutes, and rules are still a font of privacy law and limits on government authority; do not overlook them. State history can also be used in the right cases. They are, however, irrelevant under a Fourth Amendment analysis or in federal court (see No. 11, above). Construction questions still require prejudice be shown.
13. If you find you don’t completely understand the Fourth Amendment, you’re not alone because hardly anybody does any more. To me, much of the Fourth Amendment has turned into a Rorschach test that means different things to different people, all depending on how they want it to come out. How did just 54 words generate untolled millions of words in cases, treatises, and law review articles? The U.S. Supreme Court alone has decided about 250 Fourth Amendment cases.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)