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But it's a worthless question, too, since the Fourth Amendment is with us and isn't going to be repealed any time soon.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.
Posts
Mr. Gamso, I appreciate the comments. If you will allow me, I'd like to make a brief response.
ReplyDelete"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."
At this point, you understood what I'm getting at. I don't think that rhetorical laments over the "death" of the Fourth Amendment will actually accomplish anything, because it's not actually dead and does retain at least a measure of its authority. Critiques of the ways it has been narrowed will be much more useful in terms of making the law better.
"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."
This actually misrepresents the exchange between Quixote and I. My problem with Quixote's examples was not that he made them (in fact, examples are exactly what I think are useful) but that he tried to use the examples to prove something that couldn't logically be deduced from those examples.
Quixote and others were trying to use a catalog of exceptions as proof that there is no situation left where the Fourth Amendment applies. The fact is, as I pointed out in the Affirmative Links thread, that no matter how long a list of exceptions you can think of, that proves nothing about how many searches are actually excluded from Fourth Amendment protection. You can't look at exceptions without comparing it to the original domain to determine how significant the exceptions actually are.
You then go into a long bit of trying to show how the Fourth Amendment is toothless, but don't actually show it. Your tagline says that you are a criminal defense lawyer. Have you lost every single motion to suppress under the Fourth Amendment that you've fired? In my limited experience, I've seen multiple such motions granted.
As I believe I made clear over at Affirmative Links, I don't think that Fourth Amendment jurisprudence is in the place it should be. I don't think we should have as many exceptions to the exclusionary rule as we have. But I do think it's ludicrous to try to make the issue seem worse than it is by claiming that nothing is ever excluded under the Fourth now.
"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"
Here, you're confusing exceptions to the Fourth Amendment with exceptions to the exclusionary rule. I was under the impression that we were talking about the latter. There is nothing in the language of the Fourth Amendment that says that all violations of the Amendment should be remedied by exclusion. In fact, exclusion of evidence in criminal trials isn't even mentioned in the text of the Amendment.
So, you can argue that there shouldn't be any exceptions to the exclusionary rule. I would probably disagree, though I would agree that there are currently too many exceptions. But all of that is irrelevant and tangential to the debate at Affirmative Links that you say you're responding to.
So, to sum up: I agree with Publius that there are too many exceptions to the Fourth Amendment, but I suggested, rather innocuously, that laments over the "dead" Fourth Amendment aren't as useful as pointing out specific problems in the jurisprudence. In response, several other commentators (particularly Quixote) extended Publius' view to the absurd length not that the exceptions are going too far but that they have gone all the way so that nothing is covered by the Fourth anymore.
ReplyDeleteThroughout, my main point has been exactly that this kind of debate isn't useful. Trying to generalize too much about the exceptions to the Fourth leads to baseless claims that nothing is ever excluded anymore. Starting from a premise so contrary to fact won't actually get us anywhere towards a solution.
Unless, that is, one takes the view that there should be no exceptions to the exclusionary rule, which I think is a different position than Publius or the other commentators were taking. If you'd like to debate that, separate from the other issues, I would be thrilled.
I apologize that this didn't end up being brief. Thanks for your time and thoughtfulness. And if you address anything to me in the future I'd appreciate a heads up at drewmm@gmail.com. Thanks!
And, please forgive the addendum. I apologize for not realizing that you write as Quixote on Affirmative Links. I have been reading there regularly but can't keep track of everything.
ReplyDeleteIn California, it is easier to list the times the Fourth will apply than to list the exceptions.
ReplyDeleteThere appears to be only one set of circumstances where it applies: if law enforcement searches a home without consent and without warrant where there is not the remotest chance of exigent circumstances and the homeowner has standing as well as sufficient credible (to the court) witnesses to convince a judge beyond a reasonable doubt that all conditions in this sentence were met.
Note that this excludes all vehicle searches.
Yep. I think that pretty much covers it.
Rick, are you talking about where the Fourth Amendment applies or where the exclusionary rule applies?
ReplyDeleteCorrect me if I'm wrong, but I believe the exclusionary rule would apply in the following circumstances, would it not?
* The police search someone's mail without a warrant.
* The police detain someone on the street and force them to empty their pockets or go through a bag.
* The police continue to search a building or vehicle after a suspect has been safely detained.
* The police tap a phone line without a warrant.
* The police detain a person at a traffic stop longer than is necessary so that drug dogs can arrive.
* The police or school officials conduct random drug searches of students' belongings or persons.
I could go on, but I'd be interested in your reaction to this limited list first.
personaly i think we could end all the problems over illegal searchs with a simple procedure.
ReplyDeleteAnytime law enforcment try to come into your home and they are not on the tail of someone they are chasing though your door or don't have a search warrant in their head.
put a bullet through there head like you would any other armed individual coming into your home unannounced.
Might stop the searches. Might also get you killed. And certainly, if you survived, you'd be prosecuted. And they'd find a way to make sure you were convicted.
ReplyDeleteMore work for me, but not particularly healthy for you.