How many exceptions does it take before you no longer have a default rule?
His point, of course, is that the courts have grafted so many exceptions onto the Fourth, and then applied them so broadly, that there's nothing much left of it. That seemed clear and simple enough when it was posted, and it still seems so now. At least to me.
Not, however, to Andrew MacKie-Mason who said in a comment that Publius was pursuing the issue improperly. Instead of how much the Fourth has been eroded, AM-M wanted a specific list of bad exceptions. Grits tried to explain. Nope. Some guy named Daniel went back and forth with AM-M. Nope. Finally, in exasperation at odds with his naturally optimistic and open style, some guy calling himself Quixote wrote a lengthy diatribe trying to explain.
AM-M still doesn't get it. Now he's unhappy that Quixote hasn't explained how to improve the Fourth Amendment and has only provided examples and argument rather than analysis of just what's wrong with each of the dozens of exceptions.
Which, of course, wasn't the point.
This has all gotten out of hand, so I thought I'd go after it here, with an open post to AM-M.
Is it better to have a toothless Fourth Amendment than none? That's actually your question (though it's not where you began). Answer: Sure it is. The Amendment has, as Quixote said, linguistic force. And words matter. So does rhetoric.
But it's a worthless question, too, since the Fourth Amendment is with us and isn't going to be repealed any time soon.
But, and here we go again, the Fourth is toothless. The exclusionary rule was developed as a remedy for Fourth Amendment violations. But the courts didn't like the remedy since it interfered with convictions. (Which is the point of the legal system, right, to get the bad guys no matter how?) So they crafted exception on top of exception on top of exception. And then insisted that the exceptions are to be read broadly, with deference to the officers who violate the Fourth and to the judges who issue warrants without probable cause.
According to the Supreme Court, this all works just fine. There's no real need for exclusion because the Fourth Amendment is strong and vital on its own. Police just don't violate it any more.
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.
Anything's possible, but I don't know anyone who really believes that. I've yet to find a case where an officer suffered "internal discipline" for violating the Fourth Amendment (though I've seen a number where serial violators are promoted). And the idea of the "increasing professionalism" of the police - at least in regard to the rights of citizens, is risible. You can only believe this stuff if you live with willful blinders.
The real joke is the idea that civil lawsuits are a major deterrent. The same Supreme Court that touts their efficacy has erected massive barriers to their success.
Really, isn't this the point: There shouldn't be any exceptions. I mean, you can talk all you want about whether the exclusionary rule is or isn't the only meaningful check on Fourth Amendment violations (at least, until the law of constitutional torts is completely rewritten. But the language of the Fourth Amendment doesn't include "with exceptions to catch seriously bad guys or when it just seems out of whack to apply these rules." The language of the Fourth is unequivocal:
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.
You can argue about when a search is reasonable, but the point of the Warrant rules is that the measure of reasonableness is a warrant issued on probable cause. I don't see a place for judicially crafted exceptions there. So the question isn't which exceptions to have or not to have, it's whether to have exceptions at all. And the point with which Publius began remains. The courts have created so many exceptions that the rule is honored only in the breach.
That doesn't make the Fourth Amendment worthless, but it pretty much eliminates it as an actual rule.