The Liberal Assault on the Fourth Amendment

Laura Walker won’t be too happy with this. According to the Court, the Fourth Amendment is mute about undercover searches (inside the home or out), inspections of welfare mothers’ and probationers’ homes, flyovers of curtilage and trespasses on property beyond it, surveillance of public movements, most compelled testing for drugs and alcohol, dog sniffs of cars and luggage, and rummaging through garbage. n1 Why don’t you contact me directly at natashagils at yahoo dot com and we can make this work one on one instead of going through middlemen to get assignments done.

And the Amendment is close to irrelevant in a host [*604] of other situations, including third-party subpoenas for documents, checkpoints for drunk driving and illegal immigration, residential and business health and safety inspections, and searches of junkyards for stolen parts. n2 Under current constitutional doctrine, the government needs no justification to engage in the first set of actions, and so little to carry out the second that it is virtually unregulated. … A crucial initial assumption in this essay is that, at bottom, neither the language nor the legislative history of the Fourth Amendment drives the analysis on this issue.

… I am looking for socio-political explanations for our current Fourth Amendment doctrine, not formalistic ones. The most obvious such explanation for the decisions referenced above is that the Supreme Court does not want to shackle government law enforcement efforts. Undoubtedly, that is a large part of the answer. But it is not the entire story. As I have suggested elsewhere n5 (and briefly explain again here), effective crime control and a more activist interpretation of the Fourth Amendment are not necessarily mutually exclusive.

Other explanations for the Court’s less-than-robust reading of the Fourth Amendment focus on the ironic consequences of decisions, mostly generated by [*605] the relatively “liberal” Warren Court, that were meant to expand its scope. For instance, it is fashionable to place much of the blame for today’s law on the Warren Court’s adoption of privacy as the core value protected by the Fourth Amendment. This move, in Katz v. United States, n6 was hailed at the time as a major enhancement of constitutional protection against government intrusion.

As many have pointed out, however, because privacy is a manipulable concept, the Court has since found it easy to declare that a large array of police actions-ranging from use of informants to public surveillance and school and workplace drug testing-either do not implicate or are only limply protected by the Fourth Amendment. n7 This diagnosis has some attraction as well, but fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court.

In this essay, I too suggest that the modern Court’s early expansive stances on the Fourth Amendment have ultimately led to its diminishment. But Katz’s expectation-of-privacy formulation is not the culprit. Rather, three other liberal dogmas-what I call the probable-cause-forever position, the individualized suspicion mantra, and the obsession with exclusion as a remedy-are the primary reasons we have a Fourth Amendment Lite. The end-logic of these three dogmas produce such unappealing results that even moderate and liberal justices have balked at them, leaving us with a search and seizure jurisprudence that is much less than it could be.

When a search requires probable cause to be constitutional, courts are naturally more reluctant to denominate every police attempt to find evidence a search. When suspicion must be individualized, they are more likely to gloss over the harms caused by investigations of groups. And when the sole serious sanction for an illegal search or seizure is suppression at trial, many judges have less sympathy for viable claims, because they cannot stomach dismissal of criminal charges against guilty people. I. Probable Cause Forever Of course, probable cause is not required for every police action that is called a search or seizure.

Terry v. Ohio, n8 a Warren Court decision, stands for the proposition that both detentions short of arrest and patdowns of outer clothing are permissible on reasonable suspicion, which represents a certainty level somewhere below the even-chance threshold often associated with probable cause. The Terry Court was willing to relax Fourth Amendment strictures with respect to stops and frisks because the government’s interest in “effective crime prevention and [*606] detection” on the streets justified the “brief, though far from inconsiderable, intrusion upon the sanctity of the person” that these actions occasion.

n9 In the seizure context, the post-Warren Court has routinely relied on this balancing approach-or what I have called the “proportionality principle”-in holding that several different types of detentions short of an arrest may take place on less than probable cause. n10 In the search context, however, it has been much less willing to follow this route. Instead, the Court has insisted, in the words of Justice Stewart in Katz, that “searches conducted . . .

without prior approval by judge or magistrate [and therefore without probable cause], are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well- delineated exceptions. ” n11 … [In] T. L. O. .. [the Court] then went on to hold that probable cause was not required to search a school child’s purse for evidence of disciplinary infractions, thereby creating the one major exception (other than Terry’s frisk rule) to the probable-cause-forever dogma. Labeled the “special needs” doctrine, a phrase taken from Justice Blackmun’s concurrence in T.

L. O. , the exception, when it applies, requires only that government action be “reasonable,” n14 which in practice has meant that neither a warrant nor probable cause is required. But the special needs exception is usually only applicable when, as in T. L. O. , those conducting the government action are not police and are pursuing some end other than ordinary criminal law enforcement (e. g. , school disciplinary searches, drug testing for administrative purposes, checkpoints for immigrants, or inspections of businesses for regulatory, health and safety violations).

n15 Indeed, the classic statement of the special needs paradigm is that it kicks in only when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. ” n16 The Court has on several occasions called these special needs [*607] situations “exceptional” and “limited. ” n17 In other words, outside of frisks, the usual law enforcement search for evidence of criminal activity requires probable cause. n18