Wednesday, October 21, 2009

Goin' for a ride in the car, car

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And every spring the Easter Bunny comes and leaves colored eggs and baskets of candy for children small and large. Of course, the Easter Bunny is real and the Fourth Amendment is . . . . Oh, wait, you say it's the Fourth Amendment that's real. Perhaps you need to speak with the Chief Justice of United States.

Here's the basic Fourth Amendment rule, pared down to simple English and elaborated generically:
Government agents can't search you or your stuff or seize you unless they get a warrant specifically authorizing the intrusion. The warrant has to be justified by probable cause. There are certain exceptions that the courts have made up over the years, but they are few, specific, and must be understood narrowly. If government agents violate this rule, their actions are unconstitutional, and any evidence they turn up against you will be suppressed.
We now take a break for the return engagement (two appearances so far in this post, and I'm just getting rolling) of our friend the Easter Bunny.

It's no secret to anyone who plays in the sandbox of criminal law (police, prosecutors, defense counsel, judges and justices) that the reach of the Fourth Amendment has been scaled back over the years. Nor is it a secret that "persons, papers, and effects" have less protection when they're in a motor vehicle than when in a building. It's that combination which gave us what's known as the "automobile exception."

To explain the automobile exception, I need to back up to that generic statement. Among the exceptions to the warrant requirement is a situation where police have probable cause to believe that a search will turn up evidence of crime and there are exigent circumstances which make it impossible to get a warrant without risk of losing the evidence. Back in 1925, in Carroll v. United States, the Supreme Court said, in effect, that automobiles are, themselves, exigencies. If there's probable cause to search a car, the cops don't need to bother with a warrant. In 1979, in Delaware v. Prouse, the Court made clear that police can stop a car without probable cause (not a search, a stop). Reasonable suspicion, a lesser standard, is enough.

Now, what generates reasonable suspicion? Police see something that indicates a problem? Reliable citizen calls in, identifies herself, provides specific information that police corroborate that indicates a problem? Sure, both of those things.

But what about some anonymous person says, "I just saw a Caddy with a drunk driver?"

That's what happened in Virginia. Police in Richmond received an anonymous tip that Joseph Harris was driving drunk. They found him and followed him but he didn't do anything wrong. They pulled him over anyway. Turns out he was drunk. He appealed, the Virginia Supreme Court said that an anonymous tip absent some confirming evidence, isn't even reasonable suspicion of a DUI. Well, duh. If that's enough, anyone can get anybody stopped anytime. Just call the cops and tell them that, say, Paris Hilton is driving drunk. (OK, maybe that's a bad example, since she so often is.)

Yesterday, the Supreme Court refused to hear Virginia's appeal. Typically, that's not news. The Court refused to hear bunches of cases yesterday. But Virginia v. Harris was unusual. Chief Justice Roberts decided to explain why he thought the Court should have heard the case. Here, in paraphrase, is what he said.
Drunk drivers are really dangerous. So they probably shouldn't get any protection from the Fourth Amendment.
See, if you believe the Constitution's protections only apply to innocent people who are never accused of wrongdoing, then you probably think Roberts got it right. But if you believe that, then you believe nothing. The Constitution, for you, applies only when it's irrelevant. In fact, we protect the bad guys as a means of protecting the good guys. Until it's all worked out, after all, we don't know which is which.

When Gideon wrote about this yesterday, I thought of how much fun we could have had if Roberts carried the day. Imagine calling the cops every day to say that the Chief Justice of the United States was driving drunk. They could pull him over on a daily basis. Perhaps, in time, he'd get the idea.

It would almost have been worth it. Almost.

By the way, Scalia joined in Roberts' comments. Nobody else did.

Other relevant blawgs on this:
Preaching to the Choir, The Defense Rests, The Volokh Conspiracy.

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