Rehnquist S Fourth Amendment

MISSISSIPPI LAW JOURNAL
SYMPOSIUM WILLIAM REHNQUISTS FOURTH AMENDMENT

SPONSORED BY THE
National Center for Justice and the Rule of Law FOREWORD REHNQUISTS FOURTH AMENDMENT: BE REASONABLE REHNQUISTS FOURTH AMENDMENT: PROTECTING THOSE WHO SERVE REHNQUIST AND PANVASIVE SEARCHES TERRY UNBOUND REHNQUISTS FOURTH: A PORTRAIT OF THE JUSTICE AS A LAW AND ORDER MAN FOURTH AMENDMENT DECISIONS DURING THE REHNQUIST YEARS (1972-2005) THE IMPORTANCE OF JAMES OTIS Thomas K. Clancy Craig M. Bradley Ann OConnell Christopher Slobogin Carol S. Steiker James J. Tomkovicz James J. Tomkovicz Thomas K. Clancy
Published by Students at the University of Mississippi School of Law
Volume 82
2013
Number 2
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Mississippi Law Journal

Published by Students at the University of Mississippi School of Law
VOLUME 82
2013
Copyright 2013, Mississippi Law Journal, Inc. Editor-in-Chief EMILY LOGAN STEDMAN Executive Editor M. DAVIDSON FORESTER III
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THE LAW SCHOOL FACULTY

GUTHRIE T. ABBOTT, Professor Emeritus of Law and Butler, Snow, OMara, Stevens and Cannada Lecturer in Law Emeritus MICHELE ALEXANDRE, Assistant Professor of Law RICHARD L. BARNES, Professor of Law and Leonard B. Melvin, Jr. Distinguished Lecturer in Law DEBORAH H. BELL, Professor of Law and Mississippi Defense Lawyers Association Distinguished Lecturer in Law WILLIAM W. BERRY III, Assistant Professor of Law JOHN R. BRADLEY JR., Professor of Law PHILLIP W. BROADHEAD, Director, Clinical Appeals Program and Clinical Professor of Law MERCER E. BULLARD, Associate Professor of Law W. TUCKER CARRINGTON, Director, Mississippi Innocence Project DAVID W. CASE, Associate Professor of Law THOMAS K. CLANCY, Director of the National Center for Justice and the Rule of Law and Research Professor of Law GEORGE C. COCHRAN, Professor of Law BENJAMIN P. COOPER, Assistant Professor of Law JOHN M. CZARNETZKY, Professor of Law and Mitchell, McNutt, and Sams Lecturer CYNTHIA D. DAVIS, Director, Mississippi Judicial College DONNA DAVIS, Associate Professor of Law SAMUEL M. DAVIS, Jamie L. Witten Chair of Law and Government and Professor of Law JASON DERRICK, Acting Assistant Professor of Legal Writing D. MICHAEL FEATHERSTONE, Professor Emeritus of Law MOLLY FERGUSSON, Acting Assistant Professor of Legal Writing DON L. FRUGE, Professor Emeritus and President and CEO Emeritus of the University of Mississippi Foundation JOANNE I. GABRYNOWICZ, Director of the National Remote Sensing, Air and Space Law Center and Research Professor of Law KRIS L. GILLILAND, Director of Law Library and Associate Professor of Law CHRISTOPHER R. GREEN, Assistant Professor of Law
KAREN O. GREEN, Professor of Law and Mississippi Defense Lawyers Association Distinguished Lecturer in Law MATTHEW R. HALL, Associate Dean for Academic Affairs, Associate Professor of Law and Jessie D. Puckett, Jr., Lecturer DESIREE HENSLEY, Assistant Professor of Law and Director of Civil Legal Clinic MICHAEL H. HOFFHEIMER, Professor of Law and Mississippi Defense Lawyers Association Distinguished Lecturer in Law ROBERT C. KHAYAT, Chancellor Emeritus and Professor Emeritus of Law PATRICIA KRUEGER, Acting Assistant Professor of Legal Writing and Director of Academic Excellence Program DON MASON, Associate Director of the National Center for Justice and the Rule of Law and Lecturer JACK W. NOWLIN, Associate Professor of Law and Jessie D. Puckett, Jr., Lecturer E. FARISH PERCY, Associate Professor of Law and Jessie D. Puckett, Jr., Lecturer LARRY J. PITTMAN, Professor of Law and Jessie D. Puckett, Jr., Lecturer LISA S. ROY, Associate Professor of Law and Jessie D. Puckett, Jr., Lecturer RONALD J. RYCHLAK, Professor of Law and Mississippi Defense Lawyers Association Lecturer in Law STEPHANIE SHOWALTER-OTTS, Director of the National Sea Grant Law Center and Adjunct Professor of Law HANS P. SINHA, Director of Prosecutorial Externship Program and Clinical Professor of Law CAROLYN ELLIS STATON, Provost Emeritus and Professor Emeritus of Law ROBERT A. WEEMS, Professor of Law and Butler, Snow, OMara, Stevens and Cannada Lecturer in Law WILL WILKINS, Director of the Mississippi Law Research Institute C. JACKSON WILLIAMS, Director of Legal Writing Program and Acting Assistant Professor of Legal Writing PARHAM H. WILLIAMS JR., Dean Emeritus and Professor Emeritus of Law

Published by Students at The University of Mississippi School of Law
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TABLE OF CONTENTS
ARTICLES
FOREWORD ........................................................................... Thomas K. Clancy REHNQUISTS FOURTH AMENDMENT: BE REASONABLE ............................................................................. Craig M. Bradley REHNQUISTS FOURTH AMENDMENT: PROTECTING THOSE WHO SERVE ................................................................................. Ann OConnell REHNQUIST AND PANVASIVE SEARCHES ...................................................................... Christopher Slobogin TERRY UNBOUND ................................................................................... Carol S. Steiker REHNQUISTS FOURTH: A PORTRAIT OF THE JUSTICE AS A LAW AND ORDER MAN ............................................................................ James J. Tomkovicz FOURTH AMENDMENT DECISIONS DURING THE REHNQUIST YEARS (1972-2005) ............................................................................ James J. Tomkovicz
THE JAMES OTIS LECTURE
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THE IMPORTANCE OF JAMES OTIS ........................................................................... Thomas K. Clancy 48 7
FOREWORD WILLIAM REHNQUISTS FOURTH AMENDMENT 2012 FOURTH AMENDMENT SYMPOSIUM

Thomas K. Clancy*
The Fourth Amendment1 protects citizens against unreasonable governmental searches and seizures. Due to the wide applicability of governmental intrusionsranging from countless daily intrusions at airports; traffic stops; drug testing; traditional criminal law enforcement practices; regulatory intrusions to enforce health, safety, environmental, and other regulatory schemes; and many other searches and seizuresthe Amendment is the most commonly implicated and litigated part of our Constitution. It is the foundation upon which other freedoms rest.2 Its fundamental promise is that individuals will be secure
* John T. Copenhaver Jr. Visiting Endowed Chair of Law, West Virginia University College of Law, 2012-13. Director, National Center for Justice and the Rule of Law, and Research Professor, University of Mississippi School of Law. 1 The Fourth Amendment provides:
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. U.S. CONST. amend. IV.
2
One author has stated:
[T]he Fourth Amendment may plausibly be viewed as the centerpiece of a free, democratic society. All other freedoms presuppose that lawless police action have been restrained. What good is freedom of speech or freedom of religion or any other freedom if law enforcement officers have unfettered power to violate a persons privacy and liberty when he sits in his home or drives his car or walks the streets?
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against unreasonable searches and seizures. Yet, government officials are permitted to make reasonable intrusions to effectuate legitimate governmental and societal needs. The operative word is reasonable, which is the fundamental but undefined command of the Amendment.3 A central challenge for courts is to give meaning to that term so law enforcement and individuals may know what the government may permissibly do. The Court has used many tools to interpret the Fourth Amendment, and, as any student of the Amendment knows, it has never been accused of being consistent over time. But perhaps its choices come down to this: Is the Amendment designed primarily to protect individuals from overreaching governmental invasions, or is it designed to regulate law enforcement practices? The first view would promote individual liberty, and the second would offer a rule book for the police to effectuate their intrusions. William Rehnquist served as Chief Justice of the Supreme Court from September 26, 1986, to September 3, 2005. During that period, he wrote an astonishing number of majority opinions on the Fourth Amendment, totaling twenty-five in all. The list includes many of the most important cases of that time.4 In
Yale Kamisar, The Fourth Amendment and Its Exclusionary Rule, THE CHAMPION, Sept.-Oct. 1991, at 20-21 (emphasis omitted). 3 One commentator, often quoted, has described the Amendment as having the virtue of brevity and the vice of ambiguity. JACOB W. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT 42 (1966). 4 The complete list of his opinions follows as an Appendix to this Introduction. I have taken some liberties in counting. I include cases discussing the exclusionary rule in the Fourth Amendment context, even though that rule is not grounded in the Amendment. Also, I include cases, such as United States v. Peltier, 422 U.S. 531 (1975), which deal with retroactivity of new Fourth Amendment rules. On the other hand, Rehnquists dissent in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), is not included because he did not reach the Fourth Amendment claim and did not discuss it, see id. at 545 & n.1 (Rehnquist, J., dissenting). Also excluded from the list are his opinions addressing stays of mandates. See Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319 (1994) (denial of stay regarding overbroad subpoena); Clements v. Logan, 454 U.S. 1304 (1981) (staying mandate enjoining policy of stripsearching pretrial inmates); California v. Riegler, 449 U.S. 1319 (1981) (granting stay regarding suppression of evidence of search following controlled delivery of package containing contraband when the package had been legally searched prior to the delivery); California v. Minjares, 443 U.S. 916 (1979) (dissenting from denial of stay and arguing that the exclusionary rule should be reconsidered); Miroyan v. United States, 439 U.S. 1338 (1978) (denying stay of mandate in case involving a tracking device attached to an airplane).
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addition, the Rehnquist Court issued numerous per curiam decisions,5 and it is fair to say that Rehnquist had something to do with them, given that he dissented in none of those cases. Indeed, Justice Per Curiam wrote more majority opinions when Rehnquist was Chief Justice than have any of the current Justices of the Court (excepting only Justice Scalia). During his tenure as Chief Justice, Rehnquist also wrote four dissenting opinions but no concurring opinions. Rehnquist served as an Associate Justice of the Supreme Court from January 7, 1972, to the date of his elevation as Chief Justice. During that earlier period, he wrote twenty-three majority opinions, five concurring opinions, and eleven dissenting opinions. In total, he wrote sixty-eight opinions in his thirty-three years on the bench. In only a handful of those opinions did he side with the individual.6 Regardless of whether
5 See, e.g., Brosseau v. Haugen, 543 U.S. 194 (2004) (finding qualified immunity in excessive force case and not discussing the constitutional issue); Kaupp v. Texas, 538 U.S. 626 (2003) (finding arrest when suspect was involuntarily taken from home to police station); Kirk v. Louisiana, 536 U.S. 635 (2002) (reaffirming requirement for warrant for routine arrest in home); Arkansas v. Sullivan, 532 U.S. 769 (2001) (reaffirming use of objective analysis to justify seizures and rejecting viability of pretextual claims); Flippo v. West Virginia, 528 U.S. 11 (1999) (reaffirming precedent rejecting murder-scene exception to warrant requirement); Maryland v. Dyson, 527 U.S. 465 (1999) (applying automobile exception to warrant requirement to uphold search); Pennsylvania v. LaBron, 518 U.S. 938 (1996) (same); United States v. Padilla, 508 U.S. 77 (1993) (rejecting co-conspirator standing); Smith v. Ohio, 494 U.S. 541 (1990) (holding that a warrantless search of a grocery bag that provided probable cause to arrest could not be used to justify arrest). 6 See Bond v. United States, 529 U.S. 334 (2000) (finding that a search occurred when police officer squeezed, in exploratory manner, Bonds soft-sided luggage on bus, because Bond had a reasonable expectation of privacy in the bag); Knowles v. Iowa, 525 U.S. 113 (1998) (rejecting application of the traditional authority to search incident to arrest when applied to traffic citations); Florida v. Wells, 495 U.S. 1 (1990) (holding that opening closed containers in impounded vehicle, in the absence of policy regulating inventory searches, violated the Fourth Amendment). Cf. Wilson v. Layne, 526 U.S. 603 (1999) (prohibiting media from accompanying execution of warrant in house but finding that the officers were entitled to qualified immunity); Ornelas v. United States, 517 U.S. 690 (1996) (establishing de novo review for question whether stop was based on articulable suspicion, which was arguably a defense-friendly standard, but remanding to lower court to apply the standard); Mincey v. Arizona, 437 U.S. 385, 405-07 (1978) (Rehnquist, J., concurring in part and dissenting in part) (joining the Courts opinion rejecting a homicide-scene exception to the warrant requirement, but noting that some of the evidence seized, including blood on the floor, may have been permissibly seized under an exigent-circumstances analysis; dissenting in part on other grounds).
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one agrees with his views, Chief Justice Rehnquists impact on Fourth Amendment analysisand his legacyis substantial. Rehnquists thirty-three-year tenure on the Court coincided with a dramatic increase in the amount of Fourth Amendment litigation, with the Court addressing many issues for the first time. Much of the cause of that increase was due to the Warren Courts sweeping re-interpretation of the Fourth Amendment in the 1960s.7 It was within that framework that Rehnquist made his own mark. First, the Warren Court expanded the types of actors who were covered by the Amendment. In Mapp v. Ohio,8 the Court extended the application of the exclusionary rule to state and local governments, effectively bringing those actors within the coverage of the Amendment.9 This brought before the Court a host of issues, ranging from administrative inspections to drug testing of high school students. Second, the Warren Court expanded the concepts of search and seizure. Seizures in Supreme Court cases prior to 1968 invariably involved extended detentions, including a trip to the police station and booking, and were the initial step in prosecution. With limited exceptions, there had been no occasion to discuss what constituted an arrest, and the police practice of stopping and frisking suspicious persons had been largely ignored or avoided.10 In Terry v. Ohio,11 however, the Court expanded the scope of the Fourth Amendments protections by including within the concept of a seizure a second categorystops. This additional category expanded coverage of the Amendment to many everyday interactions between police and citizens, including the millions of traffic stops that occur each year and countless interactions on the street. Terry also expanded the concept of a search to include frisks, that is, the police practice of checking persons they
7 See generally Morgan Cloud, A Liberal House Divided: How the Warren Court Dismantled the Fourth Amendment, 3 OHIO ST. J. CRIM. L. 33 (2005). 8 367 U.S. 643 (1961). 9 See id. at 655. Technically, this was initially accomplished in Wolf v. Colorado, 338 U.S. 25 (1949); however, because Wolf rejected application of the exclusionary rule as a sanction for state actors, it had no real impact. 10 See THOMAS K. C LANCY, THE FOURTH AMENDMENT: ITS HISTORY AND INTERPRETATION 219 (2008). 11 392 U.S. 1 (1968).
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accosted for weapons.12 In Katz v. United States,13 the Court offered a broad concept of a search. In announcing that the Fourth Amendment protected against the unwanted interception of conversations, the Katz Court rejected prior precedent requiring a physical trespass and, in discussing the factual situation before it, asserted: The Governments activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment.14 Katz was so amorphous that subsequent cases could have taken many different roads.15 Third, the Warren Court redefined the persons right to be secure to be primarily a privacy right, creating an expectations of privacy framework. Prior to the Warren Court era, the Supreme Court grounded Fourth Amendment protections in common law property concepts. That property-based structure was repudiated by the Court in Warden v. Hayden16 and in Katz. Justice Stewarts opinion for the Court in Katz showed how prior case law had structured the question to ask whether there had been a physical penetration of a constitutionally protected area and rejected that test. Justice Stewart also sought to explain what the Fourth Amendment did protect and the relation of that protection to the
See id. 389 U.S. 347 (1967). 14 Id. at 353. 15 Arguing for a broad-based view of what constituted a search and writing seven years after Katz was decided, Anthony Amsterdam argued that Katz rejected a twostage inquiry regarding when a search occurs:
12 13
The entire thrust of the opinion is that it is needless to ask successively whether an individual has the kind of interest that the [F]ourth [A]mendment protects and whether that interest is invaded by a kind of governmental activity characterizable by its attributes as a search. Rather, a search is anything that invades interests protected by the amendment. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 383 (1974). Amsterdam added that [s]earches are not particular methods by which [the] government invades constitutionally protected interests: they are a description of the conclusion that such interests have been invaded. Id. at 385. Subsequent caselaw did not develop in that direction. Indeed, the Court has rarely construed the concept of a search as broadly as it did in Katz, or at least as broadly as Amsterdam construed that decision. See, e.g., Thomas K. Clancy, United States v. Jones: Fourth Amendment Applicability in the 21st Century, 10 OHIO ST. J. CRIM. L. 303 (2012). 16 387 U.S. 294, 315 (1967).
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concept of privacy. However, the Courts embrace of privacy was not without reservation, and Stewart did little to explain what he meant by the term. The lessons of the majority opinion can be briefly stated: [T]he Fourth Amendment protects people, not places;17 its protections are not limited to tangible property; and property interests do not control the determination of whether a search or seizure has occurred.18 Beyond those blackletter, legal concepts, the majoritys opinion had little lasting impact on future decisions. It was Justice Harlans concurring opinion in Katz that endured. Harlans opinion is the origin of the reasonable expectation of privacy test, which came to be used by the Court as the predominant measure for the scope of the Fourth Amendments protections. The Harlan test requires that a person exhibit an actual, subjective expectation of privacy and that the expectation be one that society recognizes as reasonable.19 If either prong is missing, no protected interest is established. To support that inquiry, the post-Warren Court era created a hierarchy of privacy interests: Reasonable expectations of privacy that society is prepared to recognize as legitimate have, at least in theory, the greatest protection; diminished expectations of privacy are more easily invaded; and subjective expectations of privacy that society is not prepared to recognize as legitimate have no protection.20 Fourth, as it was broadly expanding the applicability of the Amendment to a wide array of governmental activity, the Warren Court was also re-interpreting the concept of reasonableness. The first clause of the Fourth Amendment requires that a search or seizure not be unreasonable. This is the fundamental command21 of the Amendment, and this imprecise and flexible term reflects the Framers recognition that searches and seizures were too valuable to law enforcement to prohibit them entirely but that they should be slowed down.22 Reasonableness is the measure of both the permissibility of the initial decision to
Katz, 389 U.S. at 351. Id. at 353. 19 Id. at 361 (Harlan, J., concurring). See Smith v. Maryland, 442 U.S. 735, 740 (1979) (stating that the Harlan test embraces two discrete questions). 20 See CLANCY, supra note 10, at 61-62 (collecting cases). 21 New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). 22 Berger v. New York, 388 U.S. 41, 75 (1967) (Black, J., dissenting).
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search and seize and the permissible scope of those intrusions.23 Prior to the Warren Court, the Court maintained substantive restrictions on the governments ability to search and seize, that is, there were categories of papers that could not be the target of a search or seizure. Those substantive restrictions were rejected in Hayden, and reasonableness became to be viewed solely as a procedural mechanism that regulates the circumstances when the government can intrude and the scope of that intrusion.24 In Camara25 and Terry,26 the Warren Court adopted a balancing test to measure reasonableness within the meaning of the Fourth Amendment.27 In Camara, the Court used balancing to undermine the traditional Warrant Clause model; in Terry, balancing undermined the individualized suspicion model. In Camara, the Supreme Court validated the issuance of search warrants to inspect residences for health, fire, and housing code violations on an area-wide basis, rejecting any requirement of individualized suspicion for believing that violations existed at a particular building.28 The Court asserted: Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.29 In Terry, the Court lowered the level of individualized suspicion from probable cause to articulable suspicion for frisks and stops.30 Largely as a result of the rise of balancing and the identification of expectations of privacy as the primary object protected by the Amendment, a significant list of permissible warrantless and suspicionless invasions, and the level of intrusiveness of those governmental actions, grew in the postWarren Court era. Finally, in Mapp v. Ohio,31 a very splintered Court extended the exclusionary rule to the states, grounding that extension on
E.g., T.L.O., 469 U.S. at 341; Terry v. Ohio, 392 U.S. 1, 20 (1968). See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). 25 Camara v. Mun. Court, 387 U.S. 523 (1967). 26 Terry v. Ohio, 392 U.S. 1 (1968). 27 See generally Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 MINN. L. REV. 383, 391-414 (1988) (discussing the impact of Camara and Terry on Fourth Amendment analysis). 28 Camara, 387 U.S. at 537-38. 29 Id. 536-37. 30 See CLANCY, supra note 10, at 478-81. 31 367 U.S. 643 (1961).
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the view that the rule was constitutionally mandated. That view did not survive very long. In 1971, that view was repudiated in United States v. Calandra,32 and the sole basis for exclusion has evolved to be the deterrence of future police misconduct. The postWarren Court years were characterized by an increasingly long list of exceptions to that rule.33 In 1969, the Warren Court became the Burger Court, with the succession of Warren Burger as Chief Justice. The stage was set. In 1972, when Rehnquist was appointed, the remnants of the Warren Court era were in retreat. Rehnquist, in his first term, began writing the first of his many opinions that often tracked and embraced the Warren Courts framework, yet rarely favored the defendant. The National Center for Justice and the Rule of Law,34 which is a program of the University of Mississippi School of Law, focuses on issues relating to the criminal justice system, with its purpose to promote the two concepts comprising the title of the Center. In furtherance of its mission, the Center has developed its Fourth Amendment Initiative. The purpose of the Centers initiative is to promote awareness of Fourth Amendment principles through conferences, publications, and training of state judges and other professionals in the criminal justice system. The Center has never taken a point of view as to the direction that Fourth Amendment analysis should take; rather, it has sought to facilitate awareness of the issues and encourage discussion of search and seizure principles. A central pillar of the Fourth Amendment Initiative has been its annual symposium on important search and seizure topics. As Director of the Center, I am honored to offer this preface to the important scholarship by
414 U.S. 338 (1974). See CLANCY, supra note 10, at 619-21. 34 The National Center for Justice and the Rule of Law is supported in part by grants from the Bureau of Justice Assistance, Office of Justice Programs, of the U.S. Department of Justice. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office of Victims of Crime. Points of view or opinions in the Articles stemming from this Symposium are those of the author and do not represent the official position of the United States Department of Justice. For more information about the Center, please visit www.ncjrl.org.
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the distinguished scholars for this eleventhand finalFourth Amendment symposium supported by the Center.
APPENDIX 1. The Majority Opinions of William Rehnquist as Chief Justice

Muehler v. Mena, 544 U.S. 93 (2005) (clarifying bright-line authority of police to detain all occupants of a house for the two- to three-hour duration of the execution of a search warrant; permitting questioning of detainee unrelated to purpose of detention without any showing of independent justification for the questioning). Thornton v. United States, 541 U.S. 615 (2004) (reaffirming bright-line rule permitting searches of passenger compartments of vehicles incident to arrest and extending it to the situation where the arrest occurred after suspect exited the vehicle). United States v. Flores-Montano, 541 U.S. 149 (2004) (broad opinion discussing the nature of the border-search doctrine and finding suspicionless dismantling of gas tank reasonable). Maryland v. Pringle, 540 U.S. 366 (2003) (discussing the nature of probable cause and finding that the police had probable cause to arrest three occupants of vehicle for drug possession). United States v. Arvizu, 534 U.S. 266 (2002) (finding articulable suspicion to justify stop of minivan based on the totality of the circumstances). United States v. Knights, 534 U.S. 112 (2001) (finding warrantless search of probationers apartment reasonable). Florida v. Thomas, 532 U.S. 774 (2001) (dismissing certiorari but reaffirming bright-line rule permitting searches of passenger compartments of vehicles incident to arrest). Bond v. United States, 529 U.S. 334 (2000) (finding that a search occurred when police officer squeezed, in exploratory manner, Bonds soft-sided luggage on bus, because Bond had a reasonable expectation of privacy in the bag). Illinois v. Wardlow, 528 U.S. 119 (2000) (finding that [h]eadlong flight in high crime area suffices to justify stop). Wilson v. Layne, 526 U.S. 603 (1999) (prohibiting media from accompanying police executing warrant in a house but finding that the officers were entitled to qualified immunity).
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Knowles v. Iowa, 525 U.S. 113 (1998) (rejecting application of the traditional authority to search incident to arrest to traffic citations). Minnesota v. Carter, 525 U.S. 83 (1998) (rejecting view that temporary visitors to apartment had a reasonable expectation of privacy in that location when, inter alia, they were in the apartment for two and a half hours to bag cocaine). United States v. Ramirez, 523 U.S. 65 (1998) (upholding noknock entry into house that resulted in destruction of property and observing that the manner in which a warrant was executed is a question of reasonableness). Maryland v. Wilson, 519 U.S. 408 (1997) (establishing brightline authority of police to order all passengers out of vehicle during traffic stop). Ohio v. Robinette, 519 U.S. 33 (1996) (rejecting bright-line rule that an officer had to tell the stopped motorist that he was free to go at the conclusion of a traffic stop before requesting consent to search). Ornelas v. United States, 517 U.S. 690 (1996) (establishing de novo review for questioning whether stop was based on articulable suspicion, remanding for that determination, and discussing the nature of the probable cause and articulable suspicion standards). Arizona v. Evans, 514 U.S. 1 (1995) (extension of good-faith exception to the exclusionary rule for errors made by court personnel that indicated the suspect had outstanding arrest warrant). Albright v. Oliver, 510 U.S. 266 (1994) (plurality opinion announcing judgment of Court) (Fourth Amendment applies to pretrial deprivation of liberty). Florida v. Jimeno, 500 U.S. 248 (1991) (scope of consent search of motor vehicle included opening closed paper bag on floor of vehicle). Mich. Dept of State Police v. Sitz, 496 U.S. 444 (1990) (utilizing balancing test to uphold initial stop of motorists at sobriety checkpoints). Florida v. Wells, 495 U.S. 1 (1990) (in absence of policy regulating inventory searches, opening closed containers in impounded vehicle violated the Fourth Amendment).
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United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment inapplicable to seizures of property in foreign country of nonresident alien). Graham v. Connor, 490 U.S. 386 (1989) (Fourth Amendment is proper vehicle to examine excessive-force claims stemming from seizure of person). United States v. Sokolow, 490 U.S. 1 (1989) (opining about the nature of articulable suspicion and finding that stop of suspected drug courier was justified). Colorado v. Bertine, 479 U.S. 367 (1987) (pursuant to standardized policy, inventory search of impounded vehicle permissibly included closed backpack).
2. The Concurring Opinions of William Rehnquist as Chief Justice

None.
3. The Dissenting Opinions of William Rehnquist as Chief Justice35

City of Indianapolis v. Edmond, 531 U.S. 32, 48-56 (2002) (arguing that drug checkpoints were valid, utilizing a balancing test). Chandler v. Miller, 520 U.S. 305, 323-28 (1997) (maintaining a Georgia law that required political candidates to submit to drug testing was valid). United States v. James Daniel Good Real Prop., 510 U.S. 43, 65-73 (1993) (dissenting in part) (arguing that Fourth Amendment warrant requirement provided sufficient due-process protection to property owners who have been convicted of a crime that rendered their property susceptible to civil forfeiture). Minnesota v. Dickerson, 508 U.S. 366, 383 (1993) (dissenting in part) (arguing for remand for factual findings on whether police had probable cause to believe lump felt during frisk was contraband).
35
In Minnesota v. Olson, 495 U.S. 91 (1990), he dissented without an opinion.
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4. The Majority Opinions of William Rehnquist as Associate Justice

New York v. P.J. Video, Inc., 475 U.S. 868 (1986) (rejecting higher standard for probable cause for search warrant for allegedly obscene materials). United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (detention at international border was justified based on reasonable suspicion traveler was smuggling contraband in her alimentary canal). INS v. Delgado, 466 U.S. 210 (1984) (rejecting claim that factory surveys of workers by immigration authorities constituted seizures). Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984) (no warrant needed to enter areas of motel and restaurant that are open to the public to serve administrative subpoena). United States v. Villamonte-Marquez, 462 U.S. 579 (1983) (upholding statute that permitted customs officials to board, without suspicion, ships located in waters with ready access to open sea to examine manifest and other documents). Illinois v. Gates, 462 U.S. 213 (1983) (adopting totality-ofcircumstances standard to review sufficiency of information of informant tip in affidavit to support search warrant). Texas v. Brown, 460 U.S. 730 (1983) (announcing the judgment of the Court and writing plurality opinion) (upholding use of flashlight to illuminate interior of vehicle during vehicle stop at checkpoint for license; observation of balloon containing contraband valid under plain-view doctrine, giving officer probable cause to seize the balloon). United States v. Knotts, 460 U.S. 276 (1983) (beeper placed in container of chloroform prior to its sale; tracking of that beeper as container was transported in vehicle was not a search because no reasonable expectation of privacy in movements). Rawlings v. Kentucky, 448 U.S. 98 (1980) (rejecting standing to challenge search of anothers purse, absent showing that the challenger had a legitimate expectation of privacy in the purse; applying attenuation analysis to admit a statement; and holding that a search incident to arrest may precede the formal arrest). United States v. Salvucci, 448 U.S. 83 (1980) (overruling automatic standing rule of Jones v. United States, 362 U.S. 257
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(1960), and establishing that a defendant charged with a possessory offense must establish that his own Fourth Amendment rights had been violated in the area searched). Baker v. McCollan, 443 U.S. 137 (1979) (in civil rights suit for wrongful detention based on mistaken identification, no cause of action stated when three-day detention over New Years weekend was pursuant to a valid warrant). Bell v. Wolfish, 441 U.S. 520 (1979) (examining Fourth Amendment rights of pretrial detainees and upholding restrictions on types of materials the detainees could receive, searches of living areas, and body cavity searches after contact visits). Rakas v. Illinois, 439 U.S. 128 (1978) (rejecting ability of mere passenger of a vehicle to contest a search of that vehicle and discussing that standing terminology was not helpful, that is, the proper question was whether the persons own Fourth Amendment rights have been infringed by the search or seizure). Scott v. United States, 436 U.S. 128 (1978) (in wiretapping case involving a mix of statutory and Fourth Amendment analysis, establishing objective standard to measure propriety of police actions, rather than examination of subjective intent, and opining on the ad hoc nature of any determination of reasonableness). United States v. Ceccolini, 435 U.S. 268 (1978) (establishing limits on application of the exclusionary rule to witness testimony as a fruit of an illegal search). United States v. Ramsey, 431 U.S. 606 (1977) (upholding searches of international mail based on border search doctrine). United States v. Santana, 427 U.S. 38 (1976) (upholding warrantless arrest that started at doorway of house but ended inside based on hot pursuit). United States v. Peltier, 422 U.S. 531 (1975) (strictly not a Fourth Amendment case but addressing non-retroactive application of the exclusionary rule to roving border patrols, which had been found to violate the Amendment in Almeida-Sanchez v. United States, 413 U.S. 266 (1973)). Cal. Bankers Assn v. Shultz, 416 U.S. 21 (1974) (upholding reporting requirements for banks in foreign and interstate commerce and finding no standing of depositors to challenge obtaining the records from the banks).
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Gustafson v. Florida, 414 U.S. 260 (1973) (companion case of Robinson upholding search incident to arrest as categorically reasonable for all arrests). United States v. Robinson, 414 U.S. 218 (1973) (search incident to valid arrest is exception to warrant requirement and categorically reasonable for all arrests). Cady v. Dombrowski, 413 U.S. 433 (1973) (based on community caretaking, warrantless search of vehicle to locate revolver permissible when the vehicle had been in an accident, the driver in a coma, and the vehicle towed to private lot based on police order). Adams v. Williams, 407 U.S. 143 (1972) (stop and frisk based on informant tip resulting in probable cause to arrest for gun found in defendants waistband).
5. The Concurring Opinions of William Rehnquist as Associate Justice

New York v. Belton, 453 U.S. 454, 463 (1981) (brief concurring statement joining the majority opinion upholding search of passenger compartment of vehicle incident to arrest). Donovan v. Dewey, 452 U.S. 594, 608-09 (1981) (rejecting the reasoning of the majority that upheld a statute authorizing a warrantless search but agreeing that warrantless searches of mine valid because the stone quarry searched was an open field and not protected by the Amendment). Mincey v. Arizona, 437 U.S. 385, 405-07 (1978) (joining the Courts opinion rejecting a homicide scene exception to the warrant requirement, but noting that some of the evidence seized, including blood on the floor, may have been permissibly seized under an exigent circumstances analysis; dissenting in part on other grounds). United States v. Ortiz, 422 U.S. 891, 898-99 (1975) (joining majority opinion in border patrol case that established that, to search vehicles at fixed checkpoints away from the border, probable cause was needed, but opining that fixed-checkpoint stops for the purpose of inquiring about citizenship were reasonable under the Amendment). United States v. Brignoni-Ponce, 422 U.S. 873, 887-88 (1975) (joining majority opinion upholding stop by roving border patrol
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and adding that a strong case could be made to justify stops of any motorists using highways in order to determine whether they have met the qualifications prescribed by applicable law for such use).
6. The Dissenting Opinions of William Rehnquist as Associate Justice

Michigan v. Clifford, 464 U.S. 287, 305-11 (1984) (arguing that re-entry of building and search of basement by fire investigators was continuation of earlier investigation, justified by exigent circumstances, although warrant was needed to search the remainder of the house). Florida v. Royer, 460 U.S. 491, 519-32 (1983) (broad attack on majoritys view and asserting that investigation and detention of suspected drug smuggler at airport reasonable). Robbins v. California, 453 U.S. 420, 437-44 (1981) (arguing that Mapp v. Ohio, 367 U.S. 643 (1961), should be overruled, criticizing the warrant-preference rule, and advocating broad application of the automobile exception). Steagald v. United States, 451 U.S. 204, 223-31 (1981) (rejecting requirement for search warrant to arrest someone believed to be in anothers home). Reid v. Georgia, 448 U.S. 438, 442 (1980) (rejecting view that suspect approached by federal agents at airport had been seized). Payton v. New York, 445 U.S. 573, 620-21 (1980) (agreeing with dissent of Justice White that a warrant should not be required for a routine felony arrest in a persons home and referring to significant historical evidence that the Court had misread the history of the Fourth Amendment by elevating the warrant requirement over the necessity for probable cause in a way which the Framers of that Amendment did not intend). Ybarra v. Illinois, 444 U.S. 85, 98-110 (1979) (rejecting view that Ybarra was illegally searched when police executed warrant to search tavern where Ybarra was a customer; offering extended discussion of his views on the relationship of the two clauses of the Amendment and the concept of reasonableness). Dunaway v. New York, 442 U.S. 200, 221-27 (1979) (rejecting view that Dunaway was seized when he accompanied police to station and rejecting reliance on officers subjective view that
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Dunaway would have been prevented from leaving the station if he had tried to do so; alternatively, assuming that there had been a seizure, opining that Dunaways statement was sufficiently attenuated from any illegal detention). Delaware v. Prouse, 440 U.S. 648, 664-67 (1979) (arguing that random vehicle stops to check drivers license are permissible). Franks v. Delaware, 438 U.S. 154, 180-88 (1978) (rejecting the majoritys framework to assess misrepresentations in an affidavit supporting the issuance of a warrant). Michigan v. Tyler, 436 U.S. 499, 516-18 (1978) (rejecting requirement for warrant for fire investigation of furniture store because warrant not needed for routine, regulatory inspections of commercial premises) (internal quotation marks omitted).
REHNQUISTS FOURTH AMENDMENT: BE REASONABLE

Craig M. Bradley* INTRODUCTION ................................................................. 259 I. LIMIT THE DEFINITION OF SEARCH............................. 266 II. LIMIT THE WARRANT REQUIREMENT ........................... 272 III. DILUTE THE CONTENT OF PROBABLE CAUSE ........... 278 IV. LIMIT THE APPLICATION OF THE EXCLUSIONARY RULE .................................................. 280 V. ENHANCE THE STOP AND FRISK POWER .................... 284 VI. ENCOURAGE CONSENT SEARCHES .............................. 286 VII. EMPLOY STANDING LIMITATIONS AGAINST DEFENDANTS .............................................. 288 VIII. LIMIT POSTCONVICTION REMEDIES ......................... 291 IX. MISCELLANEOUS TECHNIQUES ................................... 292 CONCLUSION ..................................................................... 293 INTRODUCTION
In a 1985 interview with the New York Times, (then) Justice Rehnquist described one of the achievements of the Burger Court, of which he had been a member for thirteen years, as call[ing] a halt to a number of the sweeping rulings . . . of the Warren Court in the area of constitutional rights of accused criminal defendants.1 While Rehnquist was pleased with the overall trend of the Burger Courts criminal procedure decisions up to that point, the Court had not gone nearly as far as Rehnquist would have liked.
* Craig M. Bradley, Robert A. Lucas Professor of Law, Indiana University, Bloomington. Thanks to Jim Tomkovicz and Yale Kamisar for their thoughtful comments on an earlier draft of this Article. This Article is drawn from Craig Bradley, The Fourth Amendment: Be Reasonable, in THE REHNQUIST LEGACY 81 (Craig Bradley ed., 2006). Reused with permission. 1 John A. Jenkins, The Partisan, N.Y. TIMES MAG., Mar. 3, 1985, at 28.
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But in the latter years of his tenure as Chief Justice, the Court steered an even more moderate course. It was not until Justice OConnors retirementand her replacement by Justice Alito, which corresponded with Rehnquists death in 2005 (and his replacement by fellow conservative and former law clerk John Roberts)that a strong conservative majority was able to make further significant inroads into defendants rights in criminal procedure. But that is another story. From the time of Justice Breyers arrival, in 1994, through 2005, the Court decided roughly equal numbers of cases involving police procedures for and against criminal defendants.2 But if the Court overall was rather moderate, Chief Justice Rehnquist, with very rare exceptions, consistently called for further limiting the rights of individuals vis--vis the state. This Article examines the techniques employed by him and others to achieve this goal in that area of constitutional law in which, year in and year out, the Court has been the most active: the Fourth Amendment.3 The Amendment provides:
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.4
In a series of cases decided during the 1960s, the Warren Court greatly expanded the ability of criminal defendants to challenge their convictions on the ground that evidence used against them had been obtained in violation of the Fourth Amendment. By far the most significant decision was Mapp v. Ohio,5 decided in 1961. While the Supreme Court made the states subject to the Fourth Amendment in 1949, they had
2 See Craig Bradley, The Middle Class Fourth Amendment, 6 BUFF. CRIM. L. REV. 1123, 1132 (2003). 3 For example, between 1979 and 1984 the Court decided thirty-five Fourth Amendment cases. Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1468 (1985). 4 U.S. CONST. amend. IV. 5 Mapp v. Ohio, 367 U.S. 643 (1961).
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specifically refused to apply the exclusionary rule to the states,6 even though it had been applied to federal prosecutions since 1914.7 Thus, unless a state had adopted its own exclusionary rule, evidence obtained by police in violation of the Fourth Amendment could nevertheless be used in the defendants trial. This meant that police were basically free to disregard the Fourth Amendment, such as the requirement that a warrant must be obtained to search someones home, because there was no effective remedy for violation of the rules. Recognizing this, the Supreme Court, in Mapp, declared that, without the exclusionary remedy to back it up, the Fourth Amendment would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties.8 Accordingly, the Court held that evidence seized in violation of the Fourth Amendment could not be used in state criminal prosecutions.9 Further, the appointment of more liberal federal judges by the Kennedy and Johnson administrations, from 1961 through 1968, as well as an expansion of the ability of federal courts to overturn state convictions occasioned by the 1963 case of Fay v. Noia,10 meant that if the state courts did not follow the Fourth Amendment and exclude evidence for its violation the federal courts would force them to do so. But what were the requirements of the Fourth Amendment? There was, and is, no code of police procedures at the federal level, as most countries have, that could simply be applied to the states. Furthermore, the Courts decisions on the subject prior to 1961 had been spotty and often contradictory.11 Accordingly, it fell to the Warren Court, and to subsequent Courts, to follow up on Mapp with an extended series of cases delineating the scope of Fourth Amendment (as well as Fifth
Wolf v. Colorado, 338 U.S. 25 (1949). Weeks v. United States, 232 U.S. 383 (1914). 8 Mapp, 367 U.S. at 655. 9 Id. at 657-60. 10 372 U.S. 391 (1963). 11 See, e.g., Chimel v. California, 395 U.S. 752, 755-63 (1969) (explaining the convoluted history of the search incident to arrest doctrine).
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and Sixth Amendment) rights that the states were expected to enforce. One principle of Fourth Amendment law was already in place: The Fourth Amendment ordinarily requires a warrant as a precondition of a reasonable search.12 The origins of the socalled warrant requirement are murky since it is not contained in the Fourth Amendment itself, which requires only that searches be reasonable and then states the preconditions that a warrant must meet if it is used.13 Nevertheless, the warrant requirement was an established rule by 1961, albeit subject to many exceptions.14 In expounding the nature of the warrant requirement, the Warren Court defined those areas for which a warrant must be used to include apartments, hotel rooms, and business premises.15 It struck down search warrants for not adequately setting forth probable cause.16 It ruled that the fruit[s] of Fourth Amendment violations, such as a confession obtained from someone during an illegal search or arrest, must also be excluded from evidence.17 It required a search warrant to bug a phone booth and other places in which a defendant might have an expectation of privacy.18 And it limited the scope of searches incident to arrest of someone at home to areas within the immediate control of the arrestee, rather than his whole house or apartment.19 At the same time, the Warren Court was also expanding and defining defendants rights in other areas of criminal procedure, most notably requiring that counsel be appointed for
E.g., Johnson v. United States, 333 U.S. 10, 14-15 (1948). See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757 (1994) (discussing the disconnect between the language of the Fourth Amendment and the Supreme Courts interpretation of it). 14 As of 1985, I counted more than twenty exceptions to the search-warrant requirement. Bradley, supra note 3, at 1473. 15 See cases cited in WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 3.2, at 133 (3d ed. 2000). 16 E.g., Aguilar v. Texas, 378 U.S. 108, 115 (1964). 17 Wong Sun v. United States, 371 U.S. 471, 485 (1963) (internal quotation marks omitted). 18 Katz v. United States, 389 U.S. 347, 353 (1967). 19 Chimel v. California, 395 U.S. 752, 763 (1969) (internal quotation marks omitted).
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indigent defendants who wanted one at all felony trials,20 and that arrested suspects be given the famous Miranda warnings before they could be interrogated by police officers.21 Meanwhile, over at the Justice Department, Assistant Attorney General Rehnquistwho came in with the Nixon administration in 1969along with his fellow conservatives, was stewing about this liberal court that, as Rehnquist was later to declare at his confirmation hearings, had swung the pendulum too far toward the accused not by virtue of a fair reading of the Constitution but rather the personal philosophy of one or more of the Justices. 22 Rehnquist was acutely aware of the issue because one of his jobs as head of the Office of Legal Counsel was to choose Justices for the Supreme Court who would reverse the trend, which Richard Nixon had complained of in his campaign, toward weaken[ing] the peace forces as against the criminal forces in this country.23 As it turned out, Nixon got to appoint four Justices, giving the Court a Republican majority by 1972 for the first time since the mid-1930s. First, there were Burger and Blackmun. Then, Nixon planned to appoint a southerner an Arkansas bond lawyer named Hershel Fridayand a womanMildred Lillie, a California appellate court judge. These plans foundered on the rocks of American Bar Association disapproval, and another potential candidate, Senator Howard Baker, could not make up his mind.24 So, much to his surprise, the forty-seven-year-old Rehnquist, along
20 Gideon v. Wainwright, 372 U.S. 335, 343-44 (1963). This was extended to misdemeanor trials by the Burger Court in Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), but not to those trials that could not result in imprisonment. See Scott v. Illinois, 440 U.S. 367, 369 (1979). 21 Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). For a brief history of the criminal procedure revolution see CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION ch. 2 (1993). 22 Nominations of William H. Rehnquist and Lewis F. Powell, ]r.: Hearings Before the S. Comm. on the Judiciary , 92d Cong., 1st Sess. 26-27 (1971) (statement of William H. Rehnquist, Nominee to be Assoc. Justice of the Supreme Court of the United States). 23 See BRADLEY, supra note 21, at 30 (internal quotation marks omitted). 24 The story of Rehnquists appointment is described in detail in JOHN DEAN, THE REHNQUIST CHOICE (2001).
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with Lewis Powell of Virginia, found himself on the Supreme Court.25 Rehnquist was undoubtedly committed to reversing Mapp v. Ohio from the moment he joined the Court, but he did not express this position in an opinion until 1979 in California v. Minjares, dissenting from the denial of a stay.26 As discussed above,27 Mapp is the keystone to Fourth Amendment rights. If Mapp could be eliminated, the entire structure of federally protected rights against unreasonable searches would collapse because police would no longer have an incentive to follow the rules.28 There was nothing radical in Rehnquists argument, which only Chief Justice Burger joined.29 He essentially repeated the points made by the Mapp dissentersJustice Harlan, joined by Justices Frankfurter, Whittaker, and, in part, Stewart.30 That is, he said that it made no sense to give the defendant a windfall by excluding relevant and competent evidence from his case especially when, as in Minjares, the violation of his rights was in good faith or, arguably, not a violation at all.31 Rehnquist further argued that the 1976 case of Stone v. Powell, by declaring that the exclusionary rule is a judicially created remedy rather than a personal constitutional right,32 had removed the constitutional underpinnings of the
Id. California v. Minjares, 443 U.S. 916, 922-23 (1979) (Rehnquist, J., dissenting from denial of stay). 27 See supra notes 5-14 and accompanying text. 28 My experience as a prosecutor in Washington, D.C., confirmed my belief that the exclusionary rule is necessary for police compliance with Supreme Court criminal procedure rules. 29 Minjares, 443 U.S. at 916 (Rehnquist, J., dissenting from denial of stay). 30 Mapp, 367 U.S. at 672 (Harlan, J., dissenting). In Minjares the officer, with probable cause to search a car, also searched a bag in the car without a warrant. Minjares, 443 U.S. at 917-918 (Rehnquist, J., dissenting from denial of stay). The California Supreme Court had concluded that the bag search was a Fourth Amendment violation, and certiorari was denied. However, the Supreme Court, in a later case, concluded that such a search was legitimate. Id. at 918. 31 Minjares, 443 U.S. at 916 (Rehnquist, J., dissenting from denial of stay); see also Mapp, 367 U.S. at 672 (Harlan, J., dissenting). 32 Stone v. Powell, 428 U.S. 465, 494 n.37 (1976).
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exclusionary rule, making it ripe for overruling.33 (He took a similar position about Miranda in a majority opinion in Michigan v. Tucker in 1974,34 trying to set the stage for Miranda to be overruled as well.) Finally, he pointed out that civil suits, which might not have been an ineffective remedy for constitutional violations at the time of Mapp, had been beefed up by more recent Supreme Court decisions such that they would adequately deter police misconduct.35 Since Rehnquists death, however, the Court has made further inroads into the exclusionary rule, declaring it not applicable if the police violation is in good faith in Herring v. United States,36 and even if the police are negligent in Davis v. United States,37 going beyond Rehnquists objection to the rule in Minjares. Rehnquists view of the exclusionary rule is shared, to an extent, by all of the countries of Western Europe and Canada. The United States is unique in having a mandatory exclusionary rule for Fourth Amendment violations, though most countries do exclude evidence on a discretionary basis more often than Rehnquist would have liked.38 In any case, the majority of the Republican Court never came around to his view, being comfortable with cabining the exclusionary rule in various ways rather than overruling it. This forced Rehnquist to conduct a sort of career-long guerrilla campaign against the exclusionary rule, and Fourth Amendment rights in general, seeking at every opportunity to limit them as much as possiblesometimes winning and sometimes losing, but obdurately slogging on. In the process, he and his fellow conservatives have developed what might be considered a manual of techniques for limiting Fourth Amendment rights or for returning the Fourth Amendment to its true meaning,
33 See Minjares, 443 U.S. at 923-24, 927-28 (Rehnquist, J., dissenting from denial of stay). 34 Michigan v. Tucker, 417 U.S. 433 (1974). 35 Id. at 925-26 (citing Monroe v. Pape, 365 U.S. 167 (1961); Monell v. Dept of Soc. Servs., 436 U.S. 658 (1978)). 36 555 U.S. 135, 147-48 (2009). 37 131 S. Ct. 2419, 2434 (2011). 38 CRAIG BRADLEY, CRIMINAL PROCEDURE: A WORLDWIDE STUDY 405 (1999).
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as they might put it. There follows a discussion of how these various techniques were employed.
I. LIMIT THE DEFINITION OF SEARCH

As noted, the Supreme Court did not begin in earnest the process of developing a body of Fourth Amendment rules to which the exclusionary rule would apply until after Mapp was decided in 1961. At the rate of between five and eight cases a year, there were still many unanswered questions left to be taken up after Burger took over as Chief Justice in 1970. In particular, the question of whether various police activities constituted a search, and hence qualified for Fourth Amendment protection, was a significant part of the Courts jurisprudence throughout the 1970s and 1980s. Although Rehnquist was not called upon to write any majority opinions in this area, he consistently joined Court majorities that limited the scope of the Fourth Amendment. Thus, the Court has held that searches of open fields,39 searches of trash left at the curb,40 and helicopter41 and airplane surveillance42 were not searches as far as the Fourth Amendment was concerned, because they did not violate the reasonable expectations of privacy.43 Consequently, they need not be justified by probable cause, much less a warrant. Likewise, use of a pen register to ascertain the telephone numbers dialed by a suspect was not a search.44 The Court reaffirmed an old rule that searches by private parties were not covered by the Fourth Amendment and held further that police reopening a package previously opened by a private party did not amount to a Fourth Amendment search either.45 Moreover, taking paint scrapings from the outside of an automobile,46 or entering the automobile and removing papers from the
39 Oliver v. United States, 466 U.S. 170, 179-81 (1984). This repeated an old position first taken in Hester v. United States, 265 U.S. 57, 59 (1924). 40 California v. Greenwood, 486 U.S. 35, 37 (1988). 41 Florida v. Riley, 488 U.S. 445, 450-52 (1989). 42 California v. Ciraolo, 476 U.S. 207, 213-15 (1986). 43 See Katz v. United States, 389 U.S. 347 (1967). 44 Smith v. Maryland, 442 U.S. 735, 745-46 (1979). 45 United States v. Jacobsen, 466 U.S. 109, 113, 120-21 (1984). 46 Cardwell v. Lewis, 417 U.S. 583, 591-92 (1974).
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dashboard to view the Vehicle Identification Number,47 were not deemed searches. Finally, the plain view doctrine, which had long held that police simply viewing, hearing, or smelling something that any member of the public could sense was not a search,48 was expanded in Dow Chemical Co. v. United States to include the use of a high-resolution camera by EPA officials to photograph the petitioners industrial plant, though the Court noted that the result might be different if a residence were involved.49 It was further applied to determine that use of a drug-detecting dog to sniff luggage at an airport, or of a car stopped for a traffic violation, was not a search.50 None of these decisions were directly inconsistent with Warren Court holdings nor inherently unreasonable. But the consistent holding that various police activities, which could only be termed searches in common parlance, were not searches for the purposes of the Fourth Amendment caused many to wonder whether Fourth Amendment protections would eventually be whittled away to nothing.51 For example, the trash case, California v. Greenwood,52 led Justice Brennan in dissent to bemoan, [T]he Court paints a grim picture of our society. It depicts a society in which local authorities may . . . monitor [citizens] arbitrarily and without judicial oversighta society that is not prepared to recognize as reasonable an individuals expectation of privacy in the most private of personal effects . . . .53 However, these fears proved to be unfounded as this trend petered out in the 1990s, with no additional holdings that put police investigative activities outside the restrictions of the
New York v. Class, 475 U.S. 106, 114 (1986). See LAFAVE ET AL., supra note 15, at 135. The plain view doctrine also includes the concept that the police may seize objects found in plain view of a policeman who has a right to be where he obtains that view. Id. 49 Dow Chemical Co. v. United States, 476 U.S. 227, 229, 239 (1986). 50 United States v. Place, 462 U.S. 696, 707 (1983); accord Illinois v. Caballes, 543 U.S. 405, 410 (2005) (suspicionless dog sniff of car during traffic stop approved). 51 See, e.g., Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 261 (1984). 52 486 U.S. 35 (1988). 53 Id. at 55-56 (1988) (Brennan, J., dissenting).
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Fourth Amendment.54 The trend was reversed by two important decisions in the 2000s, one of which, surprisingly, was authored by Rehnquist himself. In studying all of the Fourth Amendment cases decided during his thirty-odd years on the Court, this is the only non-unanimous case that I have found in which Rehnquist voted for the defendant on a Fourth Amendment issue.55 On the other side of the bench, I could find only two occasions when Justices Brennan and Marshall voted for the government in Fourth Amendment casesincluding unanimous decisionsfrom 1972 until their retirements in the early 1990s.56 In Bond v. United States, the petitioner was riding on a bus that stopped at a permanent immigration checkpoint in Texas so that the immigration status of the passengers could be checked.57 However, the zealous border patrol agent also decided to see if he could discover any drugs.58 He walked down the aisle squeezing the soft-sided luggage in the overhead storage space.59 When he got to Bonds bag, he felt a brick-like object.60 He opened the bag with Bonds consent and found a brick of marijuana.61 The issue was whether or not the initial manipulation of the bag was a search.62 Rehnquist, writing for a seven-Justice majority, concluded that it was.63 The Court applied the standard test, derived from the Warren Courts Katz decision.64 It concluded that even though the defendant realized that his
54 Except for the recent extension of the dog-sniff case in Caballes in 2005. Caballes, 543 U.S. at 410. 55 For a discussion of some of the unanimous decisions favoring defendants that Rehnquist joined, and why some of his dissents against defendants rights were not hard core, see Craig M. Bradley, Criminal Procedure in the Rehnquist Court: Has the Rehnquistion Begun? 62 IND. L.J. 273, 287-90 (1987). 56 Craig M. Bradley & Joseph L. Hoffmann, Be Careful What You Ask for: The 2000 Presidential Election, the U.S. Supreme Court, and the Law of Criminal Procedure, 76 IND. L.J. 889, 929 (2001). 57 Bond v. United States, 529 U.S. 334, 335 (2000). 58 Id. 59 Id. 60 Id. at 336 (internal quotation marks omitted). 61 Id. 62 Id. at 335. 63 Id. at 336. 64 Id. at 338.
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bag may be handled by passengers or bus personnel, he had a reasonable expectation that his bag would not be manipulated in an exploratory manner by police.65 As surprising as Rehnquists being in the majority was that Breyerjoined by Scaliawrote the dissent, citing newspaper articles about how peoples bags are manhandled by fellow passengers all the time and arguing that the agents intent did not affect the defendants expectation of privacy.66 This was certainly not an unreasonable position, and one that Rehnquist would ordinarily have been expected to join. One may speculate as to why Rehnquist abandoned his virtually invariable stance in this case. As a frequent traveler, he may not have liked the idea of the authorities being free to investigate ones bags. But since Supreme Court Justices usually travel by plane, where luggage inspections are routine, that does not seem a very satisfactory explanation. It may also be that, with a clear majority already lined up behind the defendant, he, as Chief Justice, diplomatically joined up. Rehnquist may have an overriding general philosophy of lack of sympathy toward defendants claims of constitutional protection, but he does not necessarily ask himself in each case how this case fits into that philosophy. He, in common with other judges, looks at the facts of the case and asks if the search seems reasonable or not under these factswhich, as Rehnquist has pointed out, is all that the Fourth Amendment requires.67 To him, it almost invariably does seem reasonable, though in Bond it did not. Then he presents the legal reasoning to support his view. The way Supreme Court cases typically get written is that the Justice tells the law clerk how he voted, and, if the case is assigned to that justice to write, the law clerk then writes a first draft of the decision. The draft fits the holding in the case into the existing case law, attempting, in typical lawyer fashion, to explain how the case is consistent with previous casesexcept in the rare instance that the Court has determined to overrule a previous decision.
65 66 67
Id. at 339. Id. at 340-41 (Breyer, J., dissenting). Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting).
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The point is that each decision is much more fact-driven than generally recognized. A conclusion is reached based on the facts of the case, and the doctrine is then massaged to accommodate that result, rather than the decision being driven by previous doctrine, as the opinion claims, or by a desire to change the doctrine. Thus, when a Justice writes an opinion that has the effect of, for example, limiting Fourth Amendment rights by holding that helicopter over flights are not Fourth Amendment searches, it is not necessarily that he or she set out to constrict Fourth Amendment rights. Rather, on the facts of the case, usually granted because of a conflict in the lower courts on this point, not requiring a warrant or probable cause for such over flights seems like the best result. Fourth Amendment rights get constricted incidentally. Indeed, it would be essentially impossible to get a majority of the Justices to agree, when the decision is made to hear a case, how they would specifically resolve it after argument, even though they may have a general sense of what the outcome will be at the time certiorari is granted. The fact-specific nature of decisions is illustrated by how often, at least in the Fourth Amendment area, Justices, excluding Rehnquist, vote contrary to type. Thus, the generally liberal Breyer dissented from Rehnquists decision in Bond. In Kyllo v. United States, discussed below,68 Scalia wrote an opinion for the defendant with the Courts most consistent liberal, Stevens, voting for the government. And, in Atwater v. City of Lago Vista, the usually liberal Justice Souter authored a five-to-four decision holding that a soccer mom could be subjected to custodial arrest for a seatbelt violation.69 Whatever Rehnquists reasons, Bond is a significant case for holding that your knowing that other people could intrude on your privacy in some way does not necessarily mean that your expectation of privacy is lost with regard to the police. This could have important implications for apartment dwellers, for example, who might maintain an expectation of privacy vis-vis the police in the common areas of their building even
68 69
See infra notes 70-78 and accompanying text. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
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though the other residents, and their guests, frequent those areas. Likewise, just because neighbors may cut through your yard, it does not necessarily mean that the police are free to do so. However, since Bond itself involved a manipulation of the bag that exceeded what the public might be expected to do, the Court may not extend it this far. In the other case calling a halt to the not-a-search trend, Rehnquist returned to his normal stance: voting against Fourth Amendment claims. In Kyllo v. United States, a federal agent beamed a thermal-imaging machine at the petitioners house to ascertain if it was emitting excess heat.70 The thermal image showed only how much heat was being emitted from a house relative to surrounding areas; nothing else about the activities inside.71 The excess heat from Kyllos house suggested that he was growing large quantities of marijuana using heat producing halide lamps.72 The Government argued that it was simply enhancing plain view by using the machine, much like the use of binoculars or a dog sniff.73 Moreover, it was obtaining information only about the exterior of the house, that is, the heat profile that the machine detected.74 Consequently, this was not a search, and neither probable cause nor a warrant were required.75 The Supreme Court disagreed in a five-to-four decision authored by Justice Scalia, whose libertarian tendencies occasionally trump his enthusiasm for tough law enforcement.76 The Court held that the heat was emanating from the interior of the house and obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area,77 was
70 71 72 73 74 75 76 77
Kyllo v. United States, 533 U.S. 27, 29-30 (2001). Id. at 30. Id. Id. at 35-38. Id. at 35. Id. at 35-37. Id. at 29. Id. at 34.
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a search and required a search warrantat least as long as the device was not in general public use.78
II. LIMIT THE WARRANT REQUIREMENT

The Supreme Courts favorite, and oft-repeated, Fourth Amendment maxim is that it is a cardinal principle that searches conducted outside the judicial process, without prior approval of a judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well delineated exceptions.79 In fact, as I observed in 1985, these exceptions are neither few nor well-delineated, as there were more than twenty at the time.80 By 1991, as Justice Scalia noted, concurring in California v. Acevedo, at least two more had been added.81 Search warrants are a nuisance for the police, requiring them to commit their probable cause to writing and find a prosecutor to approve it and a judicial officer to sign it. This leaves them open to a good deal of second-guessing when the defense attorney examines these papers prior to the trial. Consequently, if the government cannot convince a court that a given investigatory technique is not a search, the next best technique is to exempt it from the warrant requirement. In this exercise, the Burger and Rehnquist Courts were particularly helpful to the police, either creating or expanding many of the numerous exceptions mentioned above. Thus, though automobile searches had long been justified without a warrant,82 Rehnquist significantly extended the automobile exception in 1973 in Cady v. Dombrowski.83 Whereas previously the exception had been limited to cars on the highway based on their mobility,84 Cady extended the exception to a wrecked car searched two and a half hours after it had been towed to a
Id. United States v. Ross, 456 U.S. 798, 825 (1982) (quoting Mincey v. Arizona, 437 U.S. 385 (1978)) (internal quotation marks omitted). 80 Bradley, supra note 3, at 1473. 81 California v. Acevedo, 500 U.S. 565, 582-83 (1991) (Scalia, J., concurring in the judgment). 82 See Carroll v. United States, 267 U.S. 132, 149 (1925). 83 413 U.S. 433 (1973). 84 See id. at 451 (Brennan, J., dissenting).
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garage.85 The Court has further made it clear that this warrant exception extended to containers found in vehicles even though they could have been seized and held pending a warrant.86 Likewise, recreational vehicleswhich, as residences of a sort, could have fallen outside the exceptionwere nevertheless held to be searchable on probable cause, without a warrant, unless they were at least up on blocks at a trailer park.87 This was so despite the fact that police could ordinarily detain such a vehicle pending arrival of a warrant. Finally, just putting a suitcase in a car would deprive it of the warrant protection that it had while outside the car.88 Searches incident to arrest had also long been recognized as an exception to both the warrant- and probable-cause requirementsgiven the probable cause for the arrest itself. They had been limited by the Warren Court, in Chimel v. California,89 to the person of the suspect and the area within his immediate control . . . from within which he might gain possession of a weapon or destructible evidence.90 The Burger Court, without changing the Chimel rule, expanded this exception to add to police power in United States v. Robinson, written by Rehnquist in 1973.91 Robinson was arrested in Washington, D.C., for driving with a revoked drivers license.92 Since he was to be taken into custody, the policeman thoroughly searched his person, disclosing a cigarette package in his coat pocket, which, upon opening, was found to contain fourteen gelatin capsules of heroin.93 The Court of Appeals held that the heroin should be suppressed and that only a frisk of the individual for weapons was allowed for such a traffic offense, for which there was no evidence to be found.94 In other words, the evidentiary search
85 86 87 88 89 90 91 92 93 94
Id. at 435-39, 447-50 (majority opinion). United States v. Ross, 456 U.S. 798, 824 (1982). California v. Carney, 471 U.S. 386, 392-93 (1985). California v. Acevedo, 500 U.S. 565, 580 (1991). 395 U.S. 752 (1969). Id. at 763 (internal quotation marks omitted). United States v. Robinson, 414 U.S. 218, 235 (1973). Id. at 220. Id. at 221-23. Id. at 220.
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allowed in Chimel would not apply where there was not any evidence to be searched for, and no likelihood of a weapon. The Supreme Court rejected this argument, concluding that the arrest alone justified a full search of the arrestee for both weapons and evidence, including opening the cigarette package or, presumably, any other containers found in his pocket.95 Rehnquist noted that since an arrest is based on probable cause, it was reasonable to allow a fuller search than the more limited weapons frisk allowed on mere reasonable suspicion of criminal activity by Terry v. Ohio.96 He rejected the dissents position that the reasonableness of such a search should depend on the facts of each case, thus giving the police a clear and permissive rule to follow in every case.97 In Robinson, Rehnquist was able to grant the police a significant victory and, in the process, slap down the ultraliberal D.C. Circuit, led by Chief Judge David Bazelon, Chief Justice Burgers old nemesis from his days on that court. The Burger Court further expanded searches incident to arrest in New York v. Belton, in which it was held that a search incident to arrest of someone arrested from a car extended to the entire passenger compartment of the car, including closed containers in the back seat.98 This was a significant expansion of Chimel since, once the person was removed from the car, the passenger compartment and containers found therein were clearly no longer the area within his immediate control as Chimel had stipulated.99 In 2004, Rehnquist authored Thornton v. United States, expanding Belton to allow such searches even though the defendant had exited the car before the police arrived.100 However, after Rehnquists departure, Belton was overruled by Arizona v. Gant,101 which held that police could only search a car incident to arrest if they had reason to believe it contained evidence of the offense of arrest.
95 96 97 98 99 100 101
Id. at 236. 392 U.S. 1, 30 (1968). Robinson, 414 U.S. at 235. New York v. Belton, 453 U.S. 454, 460-61 (1981). Chimel v. California, 395 U.S. 752, 763 (1969). Thornton v. United States, 541 U.S. 615, 617 (2004). 556 U.S. 332 (2009).
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Another important exception to the warrant requirement is the inventory search. This is one of a large class of so-called special needs searches, which are supposedly undertaken for purposes other than criminal investigation and require neither warrants nor probable cause. Some of these, such as drunkdriving roadblocks,102 or drug testing of high school athletes,103 do not serve obvious societal needs beyond ordinary criminal law enforcement. Inventory searches of impounded vehicles and other possessions, by contrast, often seem more like a backdoor way to permit police to conduct searches for criminal evidence without probable cause. Nevertheless, the Supreme Court has approved both inventory searches of cars, including opening any containers found in them, and of a backpack seized from an arrestee,104 despite the possibility of simply seizing these cars or containers and holding them unopened pending either the arrival of a search warrant or the release of the property to its owner. (These cases were decided before the possibility of such containers holding explosives was a serious issue). Rehnquist wrote Colorado v. Bertine,105 upholding inventory searches of cars as long as they were conducted according to standardized criteria.106 Obviously, if the Court had been serious about a warrant requirement it would not have approved these searches. Again, however, the 2000s have seen the Court calling a halt to the growth of these special-needs searches. In City of Indianapolis v. Edmond,107 the Court struck down a druginterdiction checkpoint because its primary purpose was to uncover evidence of ordinary criminal wrongdoing,108 rather than promoting traffic safety or some other special need[].109 Chief Justice Rehnquist, joined by Scalia and Thomas,
102 103 104 105 106 107 108 109
See Mich. Dept of State Police v. Sitz, 496 U.S. 444 (1990). See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995). Illinois v. Lafayette, 462 U.S. 640, 643 (1983). 479 U.S. 367 (1987). Id. at 374 & n.6. 531 U.S. 32 (2000). Id. at 42. Id. at 37 (internal quotation marks omitted).
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dissented.110 Rehnquist pointed out that the intrusion on the motorists privacy was exactly the same as that approved in other roadblock cases.111 In Ferguson v. City of Charleston, the Court rejected a plan by a public hospital to try to protect fetuses from drug-abusing mothers by testing the urine of pregnant women without their consent and, if they tested positive, turning the results over to law enforcement officials.112 Even though the aim of the program was to protect babies, not to prosecute mothers, the Court felt that the central . . . feature of the policy . . . was the use of law enforcement to coerce the patients into substance abuse treatment, and that was unacceptable without a warrant based on probable cause.113 Rehnquist joined Scalias dissent.114 The bottom line of the Supreme Courts opinions in the Burger and Rehnquist years has been to exempt from the warrant requirement virtually all outdoor searches and seizures.115 If arrests, searches incident to arrest, and automobile searches, including containers found in automobiles, can all be performed without warrants, what is left? There are only two narrow categories of outdoor searches for which the warrant requirement is still in effect: searches of containers either not in transit or carried by hand by people whom police lack probable cause to arrest.116 Thus, as to outdoor searches, Rehnquists battle against the warrant requirement was largely won. When it comes to indoor searches, however, the Court has consistently enforced the warrant requirementnot just as to homes but also as to businesses, hotel rooms, phone booths, and so on.117 This is a trend that Rehnquist, alone among his fellow
See id.at 48 (Rehnquist, J., dissenting). See id. at 49-53. 112 Ferguson v. City of Charleston, 532 U.S. 67, 69-70, 85-86 (2001). 113 Id. at 80. 114 See id. at 91 (Scalia, J., dissenting). 115 See Craig M. Bradley, The Courts Two Model Approach to the Fourth Amendment: Carpe Diem!, 84 J. CRIM. L. & CRIMINOLOGY 429 (1993) (discussing this trend). 116 United States v. Chadwick, 433 U.S. 1, 14-16 (1977). 117 See Bradley, supra note 115.
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Justices, has never joined, instead holding to the textualist view that the Fourth Amendment does not include a warrant requirement at all.118 The Kyllo case, involving the use of a heat detector beamed at a house, has already been discussed,119 with Rehnquists usual allies, Scalia and Thomas, voting for the defendant and requiring a warrant, while Rehnquist voted against the warrant requirement. In United States v. Knotts, the Court held that police did not need a warrant to follow a car by means of an electronic beeper.120 But in United States v. Karo, it concluded that to monitor such a beeper when it was inside a house, even though it disclosed no more than the presence in the house of the drum of chemicals in which the beeper was concealed, required a warrant.121 Rehnquist disagreedalong with OConnorthat such monitoring constituted a search and hence argued that a warrant was not required.122 Likewise, United States v. Watson had held that arrests outside the home could be made on probable cause without a warrant.123 But when it came to arresting a suspect at his home, Payton v. New York required an arrest warrant plus reason to believe the suspect is within.124 White, Burger, and Rehnquist dissented.125 Steagald v. United States held that searching another persons home for a suspect required a search warrant.126 Rehnquist, joined by White, dissented, referring to the Courts ivory tower misconception of the realities of the apprehension of fugitives from justice.127 In a series of other cases, the Court has consistently upheld the warrant requirement for various intrusions into the home.128
Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting). See supra notes 70-78 and accompanying text. 120 United States v. Knotts, 460 U.S. 276, 285 (1983). 121 United States v. Karo, 468 U.S. 705, 720-21 (1984). 122 Id. at 722 (OConnor, J., concurring in part and concurring in the judgment). 123 United States v. Watson, 423 U.S. 411, 423-24 (1976). 124 Payton v. New York, 445 U.S. 573, 603 (1980). 125 See id. at 603 (White, J., dissenting). 126 Steagald v. United States, 451 U.S. 204 (1981). 127 Id. at 226 (Rehnquist, J., dissenting). 128 See, e.g., Minnesota v. Olson, 495 U.S. 91, 101 (1990) (Rehnquist, C.J. & Blackmun, J., dissenting) (exigent circumstances did not justify warrantless entry); Welsh v. Wisconsin, 466 U.S. 740, 756 (1984) (White & Rehnquist, JJ., dissenting)
118 119
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Though Rehnquist was not the sole dissenter in any of these cases, he is the only Justice who dissented in all of them. In Mincey v. Arizona, Rehnquist did join a unanimous opinion that there was no homicide scene exception to the search warrant requirement that allowed police unlimited access to the murder scene over a period of several days.129 The proper course, the Court held, was to conduct a preliminary investigation at the time of the (warrantless) response to the homicide and then get a warrant if a more thorough subsequent search was required.130 Since this would ordinarily be easy to do, this decision imposed no great burden on police. Rehnquist nevertheless wrote separately to minimize the effect of the Courts holding by opining that much of the evidence used at trial had been properly seized during the initial warrantless entry.131 As illustrated by the fact the Rehnquist was never in sole dissent in these cases, none of the positions that he has taken are unreasonable. But his consistent rejection of claims of individual rights over more than thirty-three years shows much narrower concern for the property and privacy interests protected by the Fourth Amendment than was exhibited by the sixteen other Justices with whom he shared the Supreme Court bench.
III. DILUTE THE CONTENT OF PROBABLE CAUSE

In general, once a police investigatory activity has been deemed a search it must be based on probable cause, whether or not a warrant is required. (Special needs searches, discussed above, and frisksbrief pat-downs for weapons are exceptions). Arrests, likewise, are Fourth Amendment seizures requiring probable cause. Although one might
(no exigent circumstances exception to the warrant requirement for minor offenses); see also Arizona v. Hicks, 480 U.S. 321, 330 (1987) (Powell & O Connor, JJ., Rehnquist, C.J., dissenting) (picking up and examining stereo equipment in house during emergency entry is a search requiring probable cause, though not a warrant, since the police were already legitimately inside). 129 Mincey v. Arizona, 437 U.S. 385 (1978); see also id. at 405 (Rehnquist, J., concurring in part and dissenting in part). 130 Id. at 391-95 (majority opinion). 131 Id. at 406 (Rehnquist, J., concurring in part and dissenting in part).
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suppose that probable cause means more probable than not, the Supreme Court, led by Rehnquist, has held that this is not the case. In the 1983 case of Illinois v. Gates, the Court, per Rehnquist, dealt with the meaning of probable cause in the context of search warrants.132 The Warren-Court case of Spinelli v. United States established a two-pronged analysis of search warrants based on tips from confidential informants.133 The police had to establish both the basis of knowledge (How does he know what he claims?) and the veracity (Why should we believe him?) of the informant.134 Since the informant in Gates was an anonymous letter writer, completely unknown to the police, there was no way to establish his or her veracity, and the Illinois Supreme Court ruled that the search warrant was no good, based on Spinelli.135 This despite the fact that the letter provided a lot of suspicious details, many of which were corroborated by the police, such that most people would have agreed that probable cause existed.136 While it is not at all clear that Spinelli required such a slavish adherence to its two-pronged analysis in a case such as this, the Gates Court overruled Spinelli and held that, while both factors were still relevant, the evaluation of the search warrant was to be more holisticsimply examining the totality of the circumstances to determine whether there is a fair probability that . . . evidence of a crime will be found in a particular place.137 Moreover, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed.138 A substantial basis for a fair probability sounds like a lot less than more probable than not. Gatess more expansive definition of probable cause was to be largely superseded in warrant cases the following year when the Court held that, even if probable cause were lacking,
132 133 134 135 136 137 138
Illinois v. Gates, 462 U.S. 213, 216-18 (1983). Spinelli v. United States, 393 U.S. 410, 412-13 (1969). Id. at 413. Gates, 462 U.S. at 229. Id. Id. at 238. Id. at 238-39.
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evidence would not necessarily be excluded. This case, United States v. Leon,139 is discussed in the next Part, but Gatess loosening of the definition of probable cause would prove helpful to police in warrantless search and arrest cases as well.
IV. LIMIT THE APPLICATION OF THE EXCLUSIONARY RULE

If the government cannot convince the courts that a given investigatory activity is not a search, that a warrant is not required, or that the warrant was based on probable cause, there is a fourth line of defense established by the 1984 case of United States v. Leon.140 Prior to Leon, it had been assumed by the Court that, if a Fourth Amendment violation were found, the evidence would automatically be excluded. Leon held that if the police got a search warrant from a magistrate or other judicial officer and relied on it in good faith, then the evidence would not be excluded, even if the trial judge concluded that the warrant was not in fact based on probable cause.141 The Court reasoned that the police had done their job properly by submitting their evidence of probable cause to the magistrate.142 If the magistrate made a mistake as to whether probable cause existed, the blame should not be laid at the feet of the police, as long as they relied in reasonable good faith upon the magistrates decision.143 The purpose of the exclusionary rule, to deter police misconduct, would not be well served by excluding evidence where the magistrate, not the police, had made the mistake.144 This was a six-to-three decision, with Rehnquist joining Justice Whites majority opinion.145 Leon was an important victory for police, making it difficult for defendants to suppress evidence in cases where the police had gotten a warrant, even if the warrant was defective. However, the worst fear of liberals had not yet been realized:
468 U.S. 897 (1984). Id. Id. at 925-26. Id. Id. Id. See id. at 897.
139 140 141 142 143 144 145
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That is, that the good faith exception to the exclusionary rule would be extended to all good faith mistakes by police, even in non-warrant cases. This was essentially Rehnquists position in Minjares, and, as noted, has now been achieved by Herring in the Roberts Court. Since it will be difficult to establish bad faith, the effect may be largely to wipe out the exclusionary rule as an effective remedy against illegal searches. Instead, Rehnquist was able to extend Leon only modestly in his 1995 opinion in Arizona v. Evans.146 In Evans, the defendant was arrested based on erroneous computer information that an arrest warrant had been issued for him.147 Marijuana was found during the search incident to the arrest.148 The Court held that since the erroneous information appeared to have been entered into the system by a court clerk, rather than by a police official, this was not a mistake of the police and, as in Leon, deterrence of police misconduct would not be served by excluding the evidence.149 After that case, the Court left Leon alone until a surprising 2004 decision, Groh v. Ramirez.150 In Groh, federal agents had probable cause that Ramirez possessed illegal weapons, including grenades and grenade launchers.151 The agents prepared an affidavit that set forth their probable cause and properly described the place to be searched and the weapons to be seized.152 However, in the separate search warrant itself, which the agents had prepared for the magistrates signature, the description of the weapons was omitted due to a clerical error, and the description of the house to be searched was repeated in the property to be seized section.153 Nobody noticed this omission, and the warrant was executed. As it happened, no evidence was found, but Ramirez brought a
146 147 148 149 150 151 152 153
514 U.S. 1 (1995). Id. at 3-5. Id. Id. at 14-16. 540 U.S. 551 (2004). Id. at 554. Id. Id. at 554-55.
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lawsuit under 42 U.S.C. 1983 based on a violation of his constitutional rights.154 Despite the clerical nature of this error, and the fact that the magistrate was partly at fault for signing this defective warrant, the Court held, five-to-four, that the good faith exception of Leon did not apply in this case.155 Rather, citing an exception in Leon, the Court held that this warrant was so facially deficient . . . that the executing officers cannot reasonably presume it to be valid.156 Consequently, the evidence, had they found any, should have been suppressed and Groh, as the leader of the search team, was not entitled to immunity from civil suit.157 Needless to say, Rehnquist was among the dissenters.158 By finding that even negligent mistakes by police in warrant cases could lead to exclusion, the Court limited any tendency that the lower courts might have to read Leon expansively and put to rest any hope Rehnquist might have had of using Leon as a beachhead from which to further undercut the exclusionary rule, until Alito replaced OConner after Rehnquists death. Another important way that the Court has limited application of the exclusionary rule is to find it inapplicable to proceedings other than the criminal trial. Although the Warren Court held that the exclusionary rule would be applied in criminal forfeiture proceedings as well as at the defendants trial,159 the Burger and Rehnquist Courts have refused to extend its application any further. Thus, in a series of cases, they have found the exclusionary rule inapplicable in grand jury proceedings,160 parole revocation proceedings,161 deportation proceedings,162 and civil forfeiture proceedings
Id. at 555. Id. at 557-561. 156 Id. at 565 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)) (internal quotation marks omitted). 157 Id. at 562-65. 158 See id. at 566 (Kennedy, J., dissenting). 159 One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965). 160 United States v. Calandra, 414 U.S. 338, 354-55 (1974). 161 Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998). 162 INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984).
154 155
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brought by the IRS.163 The Courts view, consistently joined by Rehnquist, was that the cost of using the exclusionary rule in these ancillary proceedings exceeds the deterrence benefit. Using similar reasoning, the Court has further held that, though evidence must be excluded from the prosecutions casein-chief due to its wrongful obtainment by police, it may be used to impeach the defendants testimony if he takes the stand164 though not, over Rehnquists objection, to impeach defense witnesses.165 Finally, the Court has limited the extent of evidentiary exclusion by narrowly interpreting the fruit-of-the-poisonoustree rule. The leading Warren Court case on this subject is Wong Sun v. United States, which held that, when police illegally entered the suspects residence and arrested him (the poisonous tree), not only physical evidence found there, but also the suspects incriminating statement must be excluded as fruit of the illegal entry.166 However, the application of the rule depends on the nature of both the poisonous tree and the fruit. In some of these cases, the poisonous tree is a confession obtained in violation of Miranda requirements. If the poisonous tree is an illegal search or arrest, the Court has been fairly tough, holding, for example, that a confession obtained after an illegal arrest, even if voluntary and preceded by Miranda warnings, must be excluded.167 Rehnquist concurred in part, joining Justice Powell who opined that such confessions should only be excluded when the Fourth Amendment violation is flagrant[].168 In United States v. Ceccolini, Rehnquist limited the fruit of the poisonous tree doctrine, holding that the testimony of witnesses who were discovered as a result of an illegal search ordinarily could not be excluded as a fruit.169 Finally, the Court, with Rehnquists concurrence, has held that evidence that is a
United States v. Janis, 428 U.S. 433, 460 (1976). United States v. Havens, 446 U.S. 620, 628 (1980) (illegal searches); Harris v. New York, 401 U.S. 222, 225-26 (1971) (Miranda violations). 165 James v. Illinois, 493 U.S. 307, 319-20 (1990). 166 Wong Sun v. United States, 371 U.S. 471, 484-88 (1963). 167 Brown v. Illinois, 422 U.S. 590, 600-03 (1975). 168 Id. at 606, 610 (Powell, J., concurring in part). 169 United States v. Ceccolini, 435 U.S. 268, 278-79 (1978).
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fruit of a poisonous tree, but would have been inevitably discovered by a legal search, may also be used at the defendants trial.170
V. ENHANCE THE STOP AND FRISK POWER

One way to avoid most of the strictures of the Fourth Amendment is for the police investigatory activity to be considered a stop and frisk rather than an arrest and search. The authority of the police to detain people briefly when they have reasonable suspicion that criminal activity may be afoot was established in the waning days of the Warren Court in the famous case of Terry v. Ohio.171 Terry recognized that police will make such stops whatever the courts say, so it attempted to bring them under the auspices of the courts. Thus, the opinion recognized that stops are seizures and frisks are searches within the meaning of the Fourth Amendment. But, to subject these brief investigatory procedures to the warrant, or even to the probable cause requirements, would be unworkable. Accordingly, the Court held that brief detentions for investigation (stops) are permitted on the lesser standard of reasonable suspicion, with frisks permitted if it is reasonably believed that the suspect is armed and dangerous.172 It fell to the Burger and Rehnquist Courts to flesh out this standard, and, predictably, they did so in ways that generally favored police. In United States v. Hensley, the Court expanded the stop power to extend to past criminal behavior, not just criminal activity that is afoot as Terry had held.173 In Florida v. Bostick, the Court held that just because the defendant on a bus was not free to leavebecause he did not want the bus to drive off without himdid not mean that he was stopped in the Terry sense.174 Consequently, reasonable suspicion was not
170 See Nix v. Williams, 467 U.S. 431, 441, 449-50 (1984) (involving a body found as a result of an improperly obtained statement, rather than an illegal search, but the reasoning would apply equally to a Fourth Amendment violation). 171 392 U.S. 1, 20-22, 30 (1968). 172 Id. at 30-31. 173 United States v. Hensley, 469 U.S. 221, 235 (1985). 174 Florida v. Bostick, 501 U.S. 429, 435-36 (1991).
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needed to ask him some questions and to seek consent to search his luggage.175 Likewise, in California v. Hodari D., the Court held that merely chasing someonewho abandoned contraband during the chasewas not a stop requiring reasonable suspicion.176 In other cases, the question has been whether the stop was sufficiently lengthy as to turn it into an arrest for which probable cause would have been required. The Court, over Rehnquists objections, has been tougher on the police in these cases. For example, it held in Florida v. Royer that taking an air travelers ticket and removing him to a private room at the airport had turned a stop, for which DEA agents had reasonable suspicion, into an arrest for which they lacked probable cause.177 Likewise, detaining a suspects luggage for an extended period of time awaiting a dog sniff was an arrest, even though the dog sniff itself did not constitute a search.178 On the other hand, when the defendants own evasive activities caused the stop of two vehicles traveling in tandem to extend over a substantial period of time, the Court reasonably concluded that this would not turn a stop into an arrest.179 As for the frisk, in 1972, Rehnquist wrote Adams v. Williams, in which the Court approved the frisk of a person regarding whom the policeman knew only that an informant had told him that a person in a car had narcotics and a gun. 180 This was upheld despite the fact that possession of the gun was legal.181 Following Adams, the understandable desire of the courts to allow the police to protect themselves has led lower courts to be extremely permissive toward police in approving frisks for all sorts of crimes and in all sorts of circumstances.182 However, in Minnesota v. Dickerson, a Court majority did hold, over Rehnquists dissent, that squeezing and manipulating a
Id. California v. Hodari D., 499 U.S. 621, 626 (1991). 177 Florida v. Royer, 460 U.S. 491, 502-03 (1983). 178 United States v. Place, 462 U.S. 696, 709 (1983). 179 United States v. Sharpe, 470 U.S. 675, 687-88 (1985). 180 Adams v. Williams, 407 U.S. 143, 148 (1972). 181 See id. at 149. 182 See David A. Harris, Frisking Every Suspect: The Withering of Terry, 28 U.C. DAVIS L. REV. 1 (1994).
175 176
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lump felt in the defendants pocket exceeded the bounds of the weapons frisk authorized by Terry.183 The Court has extended the reasoning of Terry to automobile stops, holding in Delaware v. Prouse that police could not stop individual cars at random but, like stops of people on the street, must have reasonable suspicion of either a crime or a traffic violation.184 Rehnquist was the sole dissenter, arguing that random stops should be permissible.185
VI. ENCOURAGE CONSENT SEARCHES

There is a way in which police can avoid all of the pitfalls discussed above, and create what I have called a black hole into which Fourth Amendment rights are swallowed up and disappear.186 This is by getting the defendant to consent to the search in the first place. If the defendant consents, neither warrant nor probable cause is required. The leading case on this subject is a 1973 holding, Schneckloth v. Bustamonte,187 a six-to-three decision written by Justice Stewart and joined by Rehnquist.188 Schneckloth considered the holding of the lower court that before a valid consent could be obtained the police must inform the defendant that he or she had a right not to consent.189 This arguably followed from the Courts 1964 holding in Miranda v. Arizona that interrogation must be preceded by a warning that the suspect need not answer questions.190 The Court rejected the warning requirement.191 It held that consents must be voluntary, that is, not induced by coercive behavior by police, but that suspects need not be warned of their right to refuse consent.192 The Court
Minnesota v. Dickerson, 508 U.S. 366, 378 (1993). Delaware v. Prouse, 440 U.S. 648, 663 (1979). 185 Id. at 665-66. 186 Craig M. Bradley, The Courts Curious Consent Search Doctrine , 38 TRIAL 72 (2002). 187 412 U.S. 218 (1973). 188 Id. 189 Id. at 246-48. 190 See Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). 191 Schneckloth, 412 U.S. at 248-49. 192 Id.
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distinguished Miranda arguing that involuntary confessions are inherently unreliable, whereas physical evidence obtained by a consented search is just as reliable as if it had been obtained by a search warrant.193 This distinction is fallacious. The reliability of the evidence obtained has nothing to do with the voluntariness of the consentwhether it is a consent to search or to talk to the police. Mirandas holding that a statement given in ignorance of ones rights is not truly voluntary194 is equally applicable to consent searches. The Court rejected another limitation on consent searches in Florida v. Bostick195 where, in an opinion by Justice OConnor, it held by a six-to-three vote that police need not have any articulable suspicion to approach somebody to ask for consent to search.196 Moreover, it was not relevant that the defendant, who was approached by police on a bus, was not free to leave when asked to consent.197 In this context, the Court held the appropriate inquiry is whether a reasonable person would feel free to decline the officers requests or otherwise terminate the encounter.198 A reasonable person, the Court further adumbrated, means an innocent person.199 But since the defendant, by definition, is not an innocent person, the Court is not considering whether the actual defendant in the case acted voluntarily or not. In 2002, the Court, in another six-to-three decision, reaffirmed these principles in United States v. Drayton.200 Clearly, defendants in these cases, who are carrying incriminating evidence of various sorts, are not consenting to these searches voluntarily in any normal sense of the word. They are consenting either because they believe that they have no choice or that refusing consent would only arouse greater
Id. at 243-44. For those unaware of the privilege, the warning is needed simply to make them aware of itthe threshold requirement for an intelligent decision as to its exercise. Miranda, 384 U.S. at 468. 195 501 U.S. 429 (1991); see also supra Part V. 196 Bostick, 501 U.S. at 431, 437-39. 197 Id. at 436. 198 Id. 199 Id. at 437-38. 200 536 U.S. 194, 201-02 (2002).
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suspicion and the police would find a way to search anyway. But the Court evidently believes that, whatever the psychological pressure on these suspects to consent, it is enough that the police not use force or the threat of force to obtain this incriminating evidence. The consistent pattern of six-to-three votes, over thirty years, moreover, shows that this is a doctrine that is unlikely to change. This is a major victory for Rehnquist and his fellow conservatives, since police routinely use consent to avoid Fourth Amendment limitations. In one case, Ohio v. Robinette, where Rehnquist wrote the majority opinion eschewing any bright line rules for determining the voluntariness of consents, it was disclosed that the sheriffs deputy involved in the case had alone requested 786 consents to search during traffic stops in the year of the defendants arrest.201
VII. EMPLOY STANDING LIMITATIONS AGAINST DEFENDANTS

In contrast to the consent-search doctrine, where Rehnquist has generally played a supporting role, he has been a major player in expanding another limitation on the defendants ability to raise Fourth Amendment claims. This is the requirement of standing. Standing is an old and sensible limitation of constitutional law. It holds that, because the Constitution limits the Courts jurisdiction to various Cases or Controversies202 only people who have alleged . . . a personal stake in the outcome of the controversy are entitled to litigate a case in federal court.203 [T]he plaintiff himself must have suffered some threatened or actual injury resulting from the putative illegal action.204 In a criminal prosecution, it might seem obvious that the defendant would have standing to litigate Fourth Amendment violations by the police, since he or she obviously has a personal stake in the outcome of the controversy and will suffer a
201 202 203 204
Ohio v. Robinette, 519 U.S. 33, 40 (1996) (Ginsburg, J., concurring). U.S. CONST. art. III, 2. Warth v. Seldin, 422 U.S. 490, 498 (1975). Id. at 499 (internal quotation marks omitted).
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criminal conviction as a result of the putatively illegal action. However, the Supreme Court has long recognized that Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.205 Therefore, in order to bring a motion to suppress illegally obtained evidence, a defendant must show that his or her constitutional rights were violated by the search. If the police illegally search As house and find evidence incriminating B, then B, subject to an important exception discussed below, would lack standing and could not suppress the evidence. This doctrine is inconsistent with the Courts oft-stated position that the purpose of the exclusionary rule is to deter police misconduct.206 Standing limitations invite the police to violate Fourth Amendment rules when they are willing to sacrifice evidence against a property owner in order to obtain evidence against someone else. Maximum deterrence would be achieved by allowing the defendant to exclude evidence regardless of whose Fourth Amendment rights were violated. But the Warren Court reaffirmed the old standing limitations, holding that:
[W]e are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.207
Still, the Warren Court was generous in its determination of who had standing, holding that anyone legitimately on [the] premises had standing to protest a search of those premises.208 Thus if B was a visitor in As house, or a passenger in As car, he would have standing to protest an illegal police search. In Rakas v. Illinois, the Court, per Rehnquist, significantly narrowed the standing doctrine.209 Rakas held that passengers
205 206 207 208 209
Alderman v. United States, 394 U.S. 165, 174 (1969). See, e.g., United States v. Calandra, 414 U.S. 338 (1974). Alderman, 394 U.S. at 174-75. Jones v. United States, 362 U.S. 257, 267 (1960). Rakas v. Illinois, 439 U.S. 128, 148 (1978).
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in an automobile lacked standing to protest a search of the vehicle, because they had no expectation of privacy in the car.210 Only the driver and owner had standing to protest the search of the car.211 Rehnquist expanded Rakas into another context in Rawlings v. Kentucky.212 In Rawlings, as the police were arriving to search a house that the defendant and his girlfriend were visiting, the defendant dumped his narcotics into his girlfriends purse.213 The defendant attempted to argue that the search of the purse was illegal, but the Court held that he lacked standing to protest the search of the purse.214 He had no more reasonable expectation of privacy215 in her purse than Rakas had in the car in which he was riding. The fact that Rawlings owned the drugs found did not give him standing to protest the search of the purse.216 In a third case, Rehnquist was able to narrow standing somewhat more, but this time he could not get a majority to go as far as he wanted. In Minnesota v. Carter, a policeman peering through the window of an apartment observed the defendant bagging cocaine for resale.217 It turned out that the defendant had paid the apartments resident to use it for that purpose.218 Without deciding whether the policemans peering through the window was an illegal search, the Court held that a business visitor to a home, such as Carter, lacked standing to protest an illegal search of that home.219 Consequently, the cocaine was not suppressed at Carters trial.220 Carter left open an issue that affects many more people than the business-visitor holding: Whether a social guest, or a combined social and business guest, in a home has standing to
210 211 212 213 214 215 216 217 218 219 220
Id. Id. 448 U.S. 98, 103 (1980). Id. at 100-01. Id. at 103. See Katz v. United States, 389 U.S. 347 (1967). Rawlings, 448 U.S. at 103. Minnesota v. Carter, 525 U.S. 83, 91 (1998). Id. at 86. See id. at 90-91. Id.
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protest an illegal search of the home. But though this issue was technically not decided in Carter, five Justicesincluding Kennedy, who joined the Rehnquist opinionmade it clear that, in their view, social visitors generally did have standing. Since, as was made apparent by his dissentwithout opinion in Minnesota v. Olson,221 Rehnquist would have limited standing to the homeowner himself, not his visitors, overnight, social or otherwise, the Courts current position on standing is considerably more generous than Rehnquist would have liked. If these five Justices take a similar view as to social guests in a car, they will largely overrule Rakas and only slightly narrow the old Warren Court standing definitionlegitimately on [the] premises222to deny standing to purely business visitors. However, it is more likely that a majority will continue to apply Rakas to automobiles, which have consistently been held to afford their occupants reduced expectations of privacy compared to homes, while eventually holding that social guests to homes do have standing.
VIII. LIMIT POSTCONVICTION REMEDIES

Once the defendant has been convicted, he or she still has many ways to challenge the conviction, both in state and federal courts, including raising Fourth Amendment issues. Rehnquist was in the vanguard of a movement to limit the defendants post-conviction access to federal courts. But one case, authored by Justice Powell and joined, of course, by Rehnquist, specifically deals with Fourth Amendment claims. In Stone v. Powell, the Court held that Fourth Amendment claims would usually not be cognizable on federal habeas corpus.223 That is, if the defendant could not get the state courts to accept his Fourth Amendment arguments, he could not raise them in federal courteven if the police had clearly violated his Fourth Amendment rightsunless he did not get a full and fair hearing in the state courts. The reason was that [t]he exclusionary rule [is] a judicially created means of effectuating
221 222 223
495 U.S. 91, 101 (1990). See Alderman v. U.S., 394 U.S. 165 (1969). Stone v. Powell, 428 U.S. 465, 494-95 (1976).
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the rights secured by the Fourth Amendment.224 The Court recognized that:
The primary justification for the exclusionary rule . . . is the deterrence of police [mis]conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any [r]eparations come too late.225
Since the Court felt that the deterrent effect on police misconduct of recognizing exclusionary rule claims on federal habeas was not sufficient to justify the costs, in terms of new trials and increased litigation of these claims, it denied federal habeas review. Rehnquist, in turn, used Stones relegation of exclusionary claims to second-class status as one of the bases for his argument in Minjares, with which we began this Article, that the exclusionary rule should be significantly limited.226
IX. MISCELLANEOUS TECHNIQUES

Related to the not-a-search cases is a Rehnquist decision that relies on other literal language of the Fourth Amendment: [t]he right of the people.227 While this phrase might seem to have no substantive content, Rehnquist used it as the basis of his opinion in Verdugo-Urquidez.228 In this case, DEA agents, along with Mexican officials, conducted a warrantless search of the defendants house in Mexico.229 Rehnquist, writing for a five-Justice majority, ruled that the people referred to in the Fourth Amendment refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of
Id. at 482. Id. at 486 (quoting Linkletter v. Walker, 381 U.S. 618, 637 (1965)). 226 See California v. Minjares, 443 U.S. 916, 922 (1979) (Rehnquist, J., dissenting from denial of stay). 227 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (emphasis added) (quoting U.S. CONST. amend. IV) (internal quotation marks omitted). 228 494 U.S. 259. 229 Id. at 262.
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that community.230 Thus it did not apply when the person searched was a citizen and resident of Mexico . . . and the place searched was located in Mexico.231 Rehnquist went on to suggest in dictum that the Fourth Amendment also might not apply to searches of illegal aliens in the United States,232 a suggestion that the Court has not endorsed in a holding. In a related case, Rehnquist authored the majority opinion in United States v. Alvarez-Machain.233 In this case, the defendant was kidnapped from his home in Mexico by DEA agents, and convicted in Texas of the murder of another DEA agent.234 The Supreme Court, by a six-to-three vote, rejected the claim that the federal courts lacked jurisdiction to try him because of an unreasonable seizure.235 Rehnquist relied on the 1886 case Ker v. Illinois,236 which held that forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court.237
CONCLUSION
When it came to the Fourth Amendment, the police had no greater friend on the Supreme Court than William Rehnquist. It has been said that a liberal is a conservative whos been indicted.238 To the extent that personal feelings and experiences underlie a Justices attitudes about the law, the prospect of being stopped or searched by police would not seem to be a personal concern of Rehnquists. Nor does he empathize with those people for whom it is a more realistic possibility. But though he was strikingly consistent in voting to uphold the power of the police to search and arrest, this is hardly the
Id. at 265. Id. at 274-75. 232 Id. at 272. 233 504 U.S. 655 (1992). 234 Id. at 657. 235 Id. at 669-70. 236 119 U.S. 436 (1886). 237 Alvarez-Machain, 504 U.S. at 661 (quoting Ker, 119 U.S. at 444) (internal quotation marks omitted). 238 Adam Gopnik, The Caging of America, NEW YORKER, at 1, Jan. 30, 2012, available at http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopni k.
230 231
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foolish consistency that is the hobgoblin of little minds.239 More often than not, he has convinced a majority of his colleagues to go along with his conservative views and, even in dissent, invariably advances cogent and well-reasoned arguments. He is hardly the extremist that some branded him when he was nominated for Chief Justice.240 In fact, the Roberts Court further movement to the right, particularly in regard to the exclusionary rule, is making Rehnquist look more moderate than he seemed in the 1970s and 1980s. Rehnquist would deny the claim that his narrow view of Fourth Amendment rights is primarily based on a conservative political philosophy. Rather he points out that [i]t is often forgotten that nothing in the Fourth Amendment itself requires that searches be conducted pursuant to warrants. The terms of the Amendment simply mandate that the people be secure from unreasonable searches and seizures, and that any warrants which may issue shall only issue upon probable cause.241 Each search must be assessed according to its reasonableness. Likewise, the Fourth Amendment includes no exclusionary rule. Thus, his narrow view of defendants rights under the Fourth Amendment is based on the narrowness of the Amendment itself. But to say that the Fourth Amendment, by its terms, requires only that searches be reasonable does not mean that reasonableness must be assessed anew in each case. As Rehnquist has often insisted, the basic function of criminal procedure jurisprudence is to make rules for police in carrying out their work.242 Rehnquist joined Court holdings that searching open fields and curbside trash containers were not searches, despite the fact that these activities would seem to fall under the literal
239 RALPH WALDO EMERSON, ESSAYS, FIRST SERIES: SELF-RELIANCE 50 (1878) (A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.). 240 See Bradley, supra note 55, at 287 (summarizing comments about Rehnquist, including Senator Edward Kennedys statement that Rehnquist was an extremist). 241 Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting). 242 See, e.g., California v. Minjares, 443 U.S. 916, 927 (1979) (Rehnquist, J., dissenting from denial of stay).
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terms of the Fourth Amendment, in order to give the police clear rules to follow.243 Just as it may be necessary to define the Fourth Amendment narrowly in order to give police direction as to when they may need probable cause or warrants, so, on other occasions, may it be necessary to read it broadly to require search warrants to search dwellings or other places, even though the Amendment by its terms imposes no such requirement. And it may be necessary to exclude evidence in order to ensure that police abide by Fourth Amendment rules. There is certainly nothing in the Constitution that suggests that the Court may read the Bill of Rights only narrowly, to avoid undue interference with other branches of government, when a majority of the Court believes that it should be read broadly to effectuate its overarching goal of protecting individual liberty and private property. As noted in the Introduction, Rehnquist joined the Court on a particularly propitious day.244 For that same day, the swearing in of Lewis Powell gave the Court a Republican majority, which it has never relinquished during Rehnquists tenure, or to this day. As this Article shows, Rehnquists numerous decisions in the Fourth Amendment area, as well as the many other opinions that he joined, have had a tremendous impact on the development of the law of criminal procedure, which was largely unformed when he joined the Court in 1972. Though no single Rehnquist opinion in this area stands out as particularly influential, the ability of criminal defendants to succeed in Fourth Amendment claims has been significantly circumscribed by Rehnquists opinions and his votes. Rehnquist would have gone considerably further in limiting the rights of defendants, but he was checked by the defection, over the years, from the ranks of the conservatives of several of his Republican colleaguesnotably Blackmun, Stevens, and Souter. Moreover, even his most dependable conservative allies, Scalia and Thomas, sometimes exhibit libertarian tendencies that cause them to support defendants rights more often than Rehnquist does. Though this may have
243 244
See California v. Greenwood, 486 U.S. 35, 37 (1988). See supra notes 1-38 and accompanying text.
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led to frustration on Rehnquists part in individual cases, the overall trend of the Courts Fourth Amendment work in the latter years of his tenure was relatively balanceda trend for which Rehnquist, as Chief Justice, should have been proud.
REHNQUISTS FOURTH AMENDMENT: PROTECTING THOSE WHO SERVE

Ann OConnell*
INTRODUCTION ........................................................................ 297 I. TRAFFIC STOPS ..................................................................... 298 A. Reasonable Suspicion to Initiate a Stop..................... 299 B. Procedures During a Stop ........................................... 300 II. SEARCH WARRANTS ............................................................ 303 CONCLUSION ............................................................................ 305 William H. Rehnquist was sworn in as an Associate Justice of the United States on January 7, 1972. Fourteen years later, President Reagan nominated him to be the Chief Justice, and he assumed that office on September 26, 1986. The Chief, as he was affectionately known by his staff, died in office on September 3, 2005. During his more than thirty-three years as a Supreme Court Justice, Rehnquist authored 458 opinions for the Court. Although Rehnquist wrote opinions that shaped and contributed to every area of the Courts jurisprudence, he recognized that it was often the opinions issued without fanfare that would have the greatest impact on the day-to-day practice of law. In comments following Rehnquists death, Justice John Paul Stevens said that Rehnquist sometimes described these opinions by quoting from Thomas Grays Elegy Written in a Country Churchyard: Full many a flower is born to blush unseen, And waste its sweetness on the desert air.1 Rehnquist was a man without pretense. He paid no attention to what the media said about his cases, once telling a reporter that a good justice must stand on [his] own two feet and never be bamboozled by current, trendy ideas.2
* Assistant to the Solicitor General, United States Department of Justice. Law Clerk to Chief Justice William H. Rehnquist, October Term 2005. 1 Justice John Paul Stevens, Statement at the Announcement of the Death of Chief Justice William H. Rehnquist (Oct. 3, 2005) (on file with author). 2 John A. Jenkins, The Partisan: A Talk with Justice Rehnquist , N.Y. TIMES. MAG., Mar. 3, 1985, at 28, 101. This was a quality that Rehnquist admired in his mentor,
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Pretense aside, one area of jurisprudence where Rehnquists opinions were both highly anticipated and had a tremendous practical effect on day-to-day life is the Fourth Amendment. To review Rehnquists majority opinions in Fourth Amendment cases is essentially to read a casebook on search and seizure. His careful analysis in those opinions has shaped privacy rights in our country, and Rehnquists Fourth Amendment opinions are an important part of his legacy. Rehnquist was a lifelong public servant. During World War II, he served in the Army Air Forces as a weather observer in the United States and North Africa.3 He served as Assistant Attorney General in the Department of Justices Office of Legal Counsel from 1969 to 1972.4 And, of course, he spent more than thirtythree years serving as a Supreme Court Justice.5 It is perhaps from this perspective as a public servant that Rehnquists Fourth Amendment cases demonstrate his particular concern for providing guidance and flexibility to those who serve the public as law enforcement officers. In considering the reasonableness of various police investigatory techniques, Rehnquist was always mindful of the practical realities and safety risks facing the police. Those considerations came through especially clear in his opinions analyzing the Fourth Amendment interests at stake when police officers conduct traffic stops and execute search warrants.
I. TRAFFIC STOPS
In 1973, one year after Rehnquist was sworn in as a Supreme Court Justice, he wrote in Cady v. Dombrowski:
Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving
Justice Robert H. Jackson. See The Honorable William H. Rehnquist, Robert H. Jackson: A Perspective Twenty-Five Years Later, 44 ALB. L. REV. 533, 539 (1980) (noting that Justice Jackson did not have to read the views of some particular columnist, commentator, or editorial writer in order to know what he thought about a particular factual situation). 3 Stevens, supra note 1, at V. 4 See id. 5 See id.
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automobiles will be substantially greater than police-citizen contact in a home or office.6
That insight foreshadowed one major subject of Rehnquists majority opinions. Over the course of the next thirty-three years, Rehnquist would write a substantial number of opinions defining and refining how the dictates of the Fourth Amendment shaped acceptable police procedures during traffic stops. Rehnquist himself had some experience with traffic stops: He was revered by his colleagues as a fair and efficient administrator who was always punctual and he was known to acquire the occasional speeding ticket.7
A. Reasonable Suspicion to Initiate a Stop

Rehnquists first Fourth Amendment opinion, Adams v. Williams,8 was a case that involved a police officer, patrolling alone in a high-crime area, who received a tip from an informant that a person seated in a nearby vehicle was carrying drugs and had a concealed gun in his waistband.9 Based on the informants tip, the officer approached the vehicle to conduct a Terry10 stop of its occupant.11 Rehnquist rejected the argument that reasonable suspicion of criminal activity must be based on the officers personal observations, stating that [t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.12 Rehnquist further concluded that when the suspect refused to comply with the officers request to exit the vehicle and instead rolled down his car window, the officer did not violate the Fourth Amendment by reaching into the vehicle to frisk the suspect for
Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Speeding Ticket for Rehnquist, MILWAUKEE SENTINEL, Aug. 20, 1977, at 3; Rehnquist Given Speeding Citation, L.A. TIMES, Sept. 14, 1986, at 34; George Rush et al., Justice Is ServedWith A Ticket, N.Y. DAILY NEWS (Aug. 23, 2002, 12:00 AM), http://news.google.com/newspapers?nid=1368&dat=19770820&id=iY5QAAAAIBAJ&sji d=5BEEAAAAIBAJ&pg=5518,3542506. 8 407 U.S. 143 (1972). 9 Id. at 144-45. 10 See Terry v. Ohio, 392 U.S. 1 (1968). 11 Williams, 407 U.S. at 145. 12 Id.
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the gun supposedly at his waist.13 That action was a limited intrusion designed to insure [the officers] safety,14 and Rehnquist emphasized that the purpose of an investigatory frisk is to allow the officer to pursue his investigation without fear of violence.15 Rehnquists deference to the investigatory judgments of trained police officers appeared in his Fourth Amendment opinions throughout his tenure. In one of his final Fourth Amendment opinions, United States v. Arvizu,16 Rehnquist again emphasized the importance of allowing police officers to responsibly investigate crime. In Arvizu, the court of appeals concluded that many of the facts that led a border patrol agent in a remote area of southeastern Arizona to stop a van were susceptible to innocent explanation and therefore entitled to no weight in a reasonable suspicion analysis.17 Rehnquists opinion rejected that approach and emphasized that reasonable suspicion is analyzed by evaluating the totality of the circumstances, which allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.18
B. Procedures During a Stop

For scenarios unfolding after a police officer validly stops a vehicle, Rehnquists opinions were carefully crafted with an eye toward ensuring that officers remained safe in the course of their investigations. In Maryland v. Wilson,19 Rehnquist wrote that police may, as a matter of course, order the passengers of a lawfully stopped car to exit the vehicle during a traffic stop.20 Rehnquist explained that traffic stops are [r]egrettably . . . dangerous encounters, and he cited statistics tracking officer
Id. at 148. Id. 15 Id. at 146. 16 534 U.S. 266 (2002). 17 Id. at 268, 272-73. 18 Id. at 273 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). 19 519 U.S. 408 (1997). 20 Id. at 410 (extending Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), which held that officers may order a driver to exit his vehicle during a traffic stop).
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assaults and deaths during traffic pursuits and stops.21 Rehnquist concluded that the weighty interest of officer safety, balanced against the limited additional intrusion on a passenger who is already in a stopped car, was sufficient to justify ordering passengers out of a vehicle.22 Of course, the safety threat to a police officer does not dissipate once the occupants exit the vehicle. That threat reaches its height when an officer effects a custodial arrest. In the context of traffic stops, Rehnquist wrote numerous opinions on the strictures of the search incident to arrest exception to the Fourth Amendments warrant requirement.23 In the first of those opinions, United States v. Robinson, Rehnquist rejected the argument that a search incident to a lawful arrest must be based on the likelihood that a particular suspect is armed.24 Deferring to the officers best judgment about how to remain safe during his investigation, Rehnquist stated, A police officers determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment, and the authority to search does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.25 He noted that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop.26 That elevated danger, Rehnquist concluded, was an adequate basis for treating all custodial arrests alike for purposes of search justification.27
21 Id. at 413 (citing FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: LAW ENFORCEMENT OFFICERS KILLED AND ASSAULTED 71, 33 (1994)). 22 Id. at 413-15. 23 The search incident to a lawful arrest was a legitimate exception to the Fourth Amendments warrant requirement long before Rehnquist joined the Court. See United States v. Robinson, 414 U.S. 218, 224-25 (1973) (noting that search incident to arrest exception had been recognized by the Supreme Court as early as Weeks v. United States, 232 U.S. 383 (1914)). 24 See id. at 234. 25 Id. at 235. 26 Id. at 234-35. 27 Id. at 235. In a companion case decided on the same day as Robinson, Rehnquist wrote that a search incident to a lawful arrest is always reasonable under the Fourth
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Although Rehnquist was satisfied with a bright-line rule giving police officers permission to conduct searches incident to custodial arrests, he hesitated to expand the search incident to arrest exception beyond its justifications.28 In Knowles v. Iowa,29 Rehnquist declined to expand the exception to traffic-stop scenarios where the subject was issued a citation, rather than being subjected to a full custodial arrest.30 He explained that when a citation is issued, the officer safety concern is not present to the same extent and the concern for destruction . . . of evidence is not present at all.31 Rehnquist did, however, believe that the rationales underlying the search incident to arrest exception justified searching the passenger compartment of a vehicle contemporaneously with the arrest of a recent occupant.32 In his final opinion on this topic, Thornton v. United States, Rehnquist concluded that the holding of New York v. Belton33that an officer may search the passenger compartment of a vehicle contemporaneously with the arrest of an occupantshould be extended to scenarios where police initiate contact with the suspect after he has exited his vehicle.34 Writing for five members of the Court, Rehnquist explained that [i]n all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.35 The stress [of an arrest], Rehnquist explained, is no less merely because the arrestee exited his car before the officer initiated contact, nor is an
Amendment, notwithstanding the lack of a departmental requirement that suspects be taken into custody for the particular offense of arrest. Gustafson v. Florida, 414 U.S. 260, 265 (1973) (It is sufficient that the officer had probable cause to arrest the petitioner and that he lawfully . . . placed the petitioner in custody.). 28 In Chimel v. California, 395 U.S. 752 (1969), the Court outlined two rationales for the search incident to arrest exception: (1) to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape, and (2) to search for and seize any evidence on the arrestee s person in order to prevent its concealment or destruction. Id. at 763. 29 525 U.S. 113 (1998). 30 Id. at 118-19. 31 Id. at 119. 32 Thorton v. United States, 541 U.S. 615, 619-20 (2004). 33 453 U.S. 454 (1981). 34 Thornton, 541 U.S. at 617. 35 Id. at 621.
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arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle.36 Of course, the arrestee in Thornton was arguably not in control of his vehicle when the officer searched it; he was handcuffed and in the backseat of a patrol car.37 In the postRehnquist era, the Court has limited vehicle searches in those circumstances to scenarios where evidence of the crime of arrest might be found in the vehicle. In Arizona v. Gant,38 decided in 2009, the Court held that the safety and evidentiary justifications underlying the search incident to arrest exception d[id] not authorize a vehicle search incident to a recent occupants arrest after the arrestee has been secured and cannot access the interior of the vehicle, but that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.39 The Court stated that its holding was [c]onsistent with . . . Thornton, a case where evidence of the crime of arrest (drug possession) might have been found in the arrestees car.40 Although Gant indicates some pushback to the broad authority Rehnquist carved out for police officers to protect themselves from harm while conducting arrests, Rehnquists traffic-stop opinions carefully scrutinized the competing interests at stake when police officers approach criminal suspects on the road. In his balance, the concern for officer safety prevailed with regularity.
II. SEARCH WARRANTS

In addition to traffic stops, Rehnquist authored several opinions addressing another investigatory practice that can pose severe safety risks to police officers: executing search warrants. In opinions on this topic, Rehnquist tackled the difficult realities facing officers who are tasked with entering homes to conduct fullfledged searches. In those opinions, he remained steadfast in his concern for officer safety.
36 37 38 39 40
Id. See id. at 618. 556 U.S. 332 (2009); see also Thornton, 541 U.S. at 618. Id. at 335. Id.
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In United States v. Ramirez,41 an informant told an agent from the Bureau of Alcohol, Tobacco, and Firearms that he had seen a person he believed to be an escaped convict at Hernan Ramirezs house in Boring, Oregon.42 The informant also told the agent that Ramirez might have a stash of guns and drugs hidden in his garage.43 During the execution of a no-knock search warrant, officers broke a window in the garage and pointed a gun through the opening, hoping thereby to dissuade any of the occupants from rushing to the weapons the officers believed might be in the garage.44 Rehnquist wrote that although excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, the officers in this case acted reasonably by breaking a single garage window, given their information about a weapons stash there.45 Rehnquist authored an opinion approving of more intrusive tactics in Muehler v. Mena,46 his final Fourth Amendment opinion. Muehler was a case brought under 42 U.S.C. 1983 against officers who had executed a search warrant for evidence of a driveby shooting at a suspected gang house.47 The plaintiff, Iris Mena, was awakened by police officers wearing tactical gear who entered her bedroom and placed her in handcuffs at gunpoint.48 Mena and three other occupants were then detained in handcuffs for around two hours while police executed the search warrant.49 Rehnquist rejected Menas argument that police detained her for an unreasonable amount of time and in an unreasonable manner.50 Noting that this was no ordinary search, he explained that [t]he governmental interests in not only detaining, but using handcuffs, are at their maximum when, as here, a warrant authorizes a search for weapons and a wanted gang member resides on the premises.51 In such inherently dangerous
41 42 43 44 45 46 47 48 49 50 51
523 U.S. 65 (1998). Id. at 68. Id. at 68-69. Id. Id. at 71-72. 544 U.S. 93 (2005). Id. at 95-96. Id. at 96. Id. at 96, 100. Id. at 96-97. Id. at 100.
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situations, he concluded, the use of handcuffs minimizes the risk of harm to both officers and occupants.52 Although Rehnquist was willing to allow officers flexibility in executing search warrants to ensure their safety, he did not sanction police actions that did not further the purpose of the search. In Wilson v. Layne,53 Rehnquist concluded that officers who invited a reporter and a photographer from the Washington Post to accompany them in executing a search warrant as part of the U.S. Marshals ride-along policy violated the Fourth Amendment.54 Rehnquist noted the special protection afforded to the home under the Fourth Amendment,55 and he concluded those protections would be significantly watered down if a general government interest in allowing media ride alongs was sufficient to allow entry of media personnel into a home.56 Like his traffic-stop opinions, Rehnquists opinions analyzing police conduct during the execution of search warrants convey his genuine concern for the safety of law enforcement officers who, for our benefit, enter private homes to search for evidence of crime. Although Rehnquist recognized that the Fourth Amendment imposes some limitations on the manner in which police may execute search warrants, his opinions afford officers broad discretion to determine how best to protect themselves while performing this important duty.
***
Rehnquists opinions analyzing the competing interests presented by day-to-day, police-investigative practices highlight his keen understanding of the practical realities facing police officers in the field. Although Rehnquist was, without a doubt, a conservative jurist, his opinions provided clear limits on officers discretion when he believed the Fourth Amendment dictated that result. From start to finish, Rehnquist vigilantly ensured that the Fourth Amendment provided the protections for which it was
52 53 54 55 56
Id. 526 U.S. 603 (1999). Id. at 605-06. Id. at 610-11. Id. at 612.
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intended without exposing our law enforcement officers to an unreasonable risk of harm.
REHNQUIST AND PANVASIVE SEARCHES

Christopher Slobogin*
INTRODUCTION ........................................................................ 307 I. PRIVACY, YOUVE COME A LONG WAY, BABY: SOME GENERAL THEMES ..................................................... 310 II. IS AN EXPANDED RIGHT OF PRIVACY CONSISTENT WITH FAIR AND EFFECTIVE LAW ENFORCEMENT?: THREE PRINCIPLES ............................................................ 314 III. IMPLICATIONS.................................................................... 320 CONCLUSION ............................................................................ 327
INTRODUCTION
We are living in a mass-surveillance society. Digital cameras with zoom and night-vision capacity proliferate in our nations cities.1 Fusion centers, at last count numbering over seventy around the country, are sucking up gigabytes of information about our transactions.2 Transponders in our cars and Global Positioning System (GPS) devices in our phones allow our travels to be tracked twenty-four hours a day.3 Drones developed for wartime, equipped with high-powered magnification devices, are
* Milton Underwood Professor of Law, Vanderbilt University Law School. I would like to thank Wayne Logan for his comments on an earlier version of this manuscript. 1 See, e.g., Paul Joseph Watson, New Street Lights to Have Homeland Security Applications, INFOWARS.COM (Oct. 26, 2011), http://www.infowars.com/new-streetlights-to-have-homeland-security-applications; Local Surveillance to Plug into Homeland Security Camera System, INFOWARS.COM (Sept. 24, 2008), http://www.infowars.com/local-surveillance-to-plug-into-homeland-security-camerasystem; Fran Spielman, Feds Give City $48 Million in Anti-terrorism Funds, CHI. SUNTIMES, Dec. 4, 2004, at 10. 2 See U.S. DEPT OF HOMELAND SEC., Fusion Center Locations and Contact Information, http://www.dhs.gov/fusion-center-locations-and-contact-information (last visited Jan. 6, 2013) (listing 77 fusion center locations). 3 See FED. TRADE COMMN, RADIO FREQUENCY IDENTIFICATION: APPLICATIONS AND IMPLICATIONS FOR CONSUMERS (2005); Justin Elliot, How Easy Is It for the Police to Get GPS Data from Your Phone?, TPM MUCKRAKER (Dec. 9, 2009, 2:13 PM), http://tpmmuckraker.talkingpointsmemo.com/2009/12/cell_phone_surveillance_unpacki ng_the_legal_issues.php.
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flying over our urban areas every hour of the day.4 Although these techniques are now pervasive, and are often invasive, their defining characteristic is their panvasivenessthe fact that they affect so many people, most of them innocent of any wrongdoing. Panvasive surveillance could be deemed a type of search. But the Supreme Courts interpretation of the Fourth Amendments prohibition on unreasonable searches has pretty much neutered the Constitutions ability to regulate the ways modern government keeps tabs on its citizens. According to the Court, one generally cannot have a reasonable expectation of privacyand thus can have no constitutionally protected interestin activities that take place in public spaces or in transactions that involve third parties.5 We assume the risk that these everyday activities will be viewed by or disclosed to the government, and thus the government needs no justification when it decides to monitor them. The Courts recent decision in United States v. Jones6 which held that placing a tracking device on a car infringes a property interest protected by the Fourth Amendment7and the concurring opinions in that casewhich evidenced a willingness to recognize a Fourth Amendment privacy interest in travels over a long period of time8signal that the Court may be rethinking its views on this score. But as the law stands right now, panvasive investigative techniques are immune from Fourth Amendment regulation.
4 Is the NYPD Experimenting with Drones over the City? Evidence Points to Yes , CBS NEW YORK (Jan. 23, 2012, 11:59 PM), http://newyork.cbslocal.com/2012/01/23/isthe-nypd-experimenting-with-drones-over-the-city-evidence-points-to-yes; Katie Baker, CNN: Houston Police Use Drone Planes, THE RAW STORY (Nov. 25, 2007), http://rawstory.com/news/2007/CNN_Houston_police_use_drone_planes_1124.html. 5 See Christopher Slobogin, Is the Fourth Amendment Relevant in a Technological Age?, in CONSTITUTION 3.0: FREEDOM AND TECHNOLOGICAL CHANGE 11, 12-19 (Jeffrey Rosen & Benjamin Wittes eds., 2011). Some scholars have argued that the First Amendment can fill the gaps left by the Courts Fourth Amendment jurisprudence, but no court has been willing to take this approach. See Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. REV. 112 (2007); see also Marc Jonathan Blitz, Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like that of the Fourth, 62 HASTINGS L.J. 357 (2010). 6 132 S. Ct. 945 (2012). 7 Id. at 949. 8 See id. at 955-56 (Sotomayor, J., concurring); id. at 963 (Alito, J., concurring in the judgment).
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William Rehnquist had a lot to do with that. In the opinions addressing search and seizure issues that he wrote or joined, he endorsed a view of the Fourth Amendment that favored the concrete over the invisible. To him, a confrontation with a police officer, no matter how intimidating, was not a seizure unless it involved some type of physical force.9 More relevant to the current discussion, the Fourth Amendment opinions he wrote or joined stand for the proposition that a police action that avoids physical invasion of persons, houses, papers, and effects10 is not a search, no matter how aggressive police were in looking for evidence of crime.11 Yet Rehnquist was not inattentive to the less tangible interests that the Fourth Amendment might be said to protect. In particular, panvasive police surveillance, even if aimed solely at activities openly carried out in public, was something that concerned him. Support for that perhaps surprising conclusion comes not from his Fourth Amendment opinions, which did not give him an occasion to address the issue directly, but from a law review article he wrote shortly after he joined the Court, entitled Is an Expanded Right of Privacy Consistent with Fair and
9 See, e.g., United States v. Drayton, 536 U.S. 194, 200 (2002) (holding, in an opinion joined by Rehnquist, that police confrontation of a passenger on a bus was not a seizure); Florida v. Rodriguez, 460 U.S. 1, 6-7 (1984) (per curiam) (holding, in an opinion joined by Rehnquist, that a police request to follow officer to another location was consensual); Florida v. Royer, 460 U.S. 491, 508, 518 (1983) (holding, with Rehnquist dissenting, that Royer was seized when agents held his ticket and identification); United States v. Mendenhall, 446 U.S. 544, 555 (1980) (in which Rehnquist was one of only two Justices concluding that Mendenhall was not seized); Dunaway v. New York, 442 U.S. 200, 218-19, 223-25 (1979) (holding, with Rehnquist as one of two dissenters, that Dunaway was not seized when he was taken from his home to the stationhouse for questioning). 10 U.S. CONST. amend. IV. 11 See, e.g., Kyllo v. United States, 533 U.S. 27, 41-46 (2001) (Stevens, J., dissenting) (arguing, with Rehnquist in dissent, that use of a thermal imager to detect heat differentials inside a home is a search); Florida v. Riley, 488 U.S. 445, 451-52 (1989) (holding, in an opinion joined by Rehnquist, that flying 400 yards over a backyard is not a search); California v. Greenwood, 486 U.S. 35, 40 (1988) (holding, in an opinion joined by Rehnquist, that searching through garbage is not a search); Oliver v. United States, 466 U.S. 170, 176-77 (1984) (holding, in an opinion joined by Rehnquist, that search of open fields is not a search); United States v. Place, 462 U.S. 696, 707 (1983) (stating, in dictum joined by Rehnquist, that a dog sniff of luggage is not a search). Cf. Bond v. United States, 529 U.S. 334, 338-39 (2000) (holding, in an opinion written by Rehnquist, that physically manipulating luggage to feel the contents is a search).
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Effective Law Enforcement? Or: Privacy, Youve Come a Long Way, Baby.12 Despite the subtitles insinuation that the privacy envelope might have been pushed too far, this article, appearing in 1974 in the University of Kansas Law Review, expounds on principles that might be particularly pertinent in thinking about whether and how modern police investigative techniques ought to be regulated. Stated succinctly, the principles that one can glean from Rehnquists article are three in number: (1) the Fourth Amendment protects freedom from unauthorized oversight or observation; (2) government infringement of this freedom requires a particularized law enforcement interest; and (3) the latter requirement is strongest when the government seeks items a person has chosen to keep private and away from prying eyes, but does not disappear simply because the activities or items observed are in public.13 After describing some of the more provocative general points Rehnquist makes in his University of Kansas Law Review article, this Essay explains how these three specific principles emerge from its pages. The Essay then speculates how Rehnquist might have applied the principles to panvasive investigative methods. It concludes that the Fourth Amendment analysis Rehnquist appears to endorse in his article, contrary to the Courts current approach, might place some nontrivial limitations on many of the global investigative methods modern police forces use today.
I. PRIVACY, YOUVE COME A LONG WAY, BABY: SOME GENERAL THEMES

Rehnquists article, a written version of two lectures delivered at the University of Kansas School of Law on September 26th and 27th, 1974, is fascinating for a number of reasons. First, of course, it is authored by a man who would be instrumental in defining the scope of constitutional privacy for the next quarter
12 William H. Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement? Or: Privacy, Youve Come a Long Way, Baby , 23 U. KAN. L. REV. 1 (1974). 13 See infra notes 37-69 and accompanying text (discussing Rehnquists three principles).
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century.14 Second, somewhat surprisingly in light of Rehnquists antipathy toward expansive Fourth Amendment protections, the article is very respectful of privacy. Rehnquist states that privacy is a concept going to the roots of our citizens independence, dignity, and integrity.15 While the overall tone of the article is that privacy interests should generally not trump legitimate law enforcement goals, he emphasizes that no thinking person would consider privacy a negative value.16 Third, while the article is on the whole cautious in its conclusions, some of its ruminations about the interaction of privacy and law enforcement verge on the controversial, or at least are unexpectedly provocative for a new Justice on the Court. A central theme of the article is the parallel it draws between Justice Louis Brandeiss right to be let alone,17 often seen as the progenitor of the Supreme Courts privacy-oriented approach to the Fourth Amendment,18 and the Courts anti-regulatory line of cases originating with Lochner v. New York in 1905.19 Rehnquist recognized that Lochners aggressive interpretation of the freedom of contractan approach that allowed the Court to strike down democratically enacted wage and hour statuteswas no longer the law.20 But, he asserted that the now-defunct, Lochner-type cases were sisters under the skin21 with decisions like Griswold v. Connecticut,22 which nullified, on privacy grounds, a law
14 Craig M. Bradley, The Fourth Amendment: Be Reasonable , in THE REHNQUIST LEGACY 104, 104 (Craig Bradley ed., 2006) (stating that, in the Fourth Amendment context, [m]ore often than not, [Rehnquist] has convinced a majority of his colleagues to go along with his conservative views and, even in dissent, invariably advances cogent and well-reasoned arguments). 15 Rehnquist, supra note 12, at 1. 16 Id. at 2. 17 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (stating that the Fourth Amendment conferred, as against the government, the right to be let alonethe most comprehensive of rights and the right most valued by civilized men). 18 See Thomas K. Clancy, What Is a Search Within the Meaning of the Fourth Amendment?, 70 ALB. L. REV. 1, 51 (2006) (Following Brandeis lead, many others through the decades have voiced similar arguments that the Fourth Amendment must be construed to afford protections against the dramatic increase in the ability of the government to intrude based on advances in technology.). 19 See, e.g., Lochner v. New York, 198 U.S. 45 (1905). 20 Rehnquist, supra note 12, at 6. 21 Id. (internal quotation marks omitted). 22 381 U.S. 479 (1965).
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restricting the use of birth control, and Roe v. Wade,23 which limited legislatures ability to restrict abortion. Thus, Rehnquist apparently did not entirely subscribe to the economic-freedommay-be-restricted-but-personal-freedom-may-not-be dichotomy on which the Court itself has relied in distinguishing the two lines of cases.24 Rather, he thought they were closely related because both grapple with the extend to which the government can control individuals decisions about their lives. That reluctance to confine Griswold and its progeny to the most intimate liberty interests led him to an astonishing proposal for a conservative Justice: Decriminalization. Privacy might best be protected not by placing limitations on police ability to enforce the law, Rehnquist suggested, but by eliminating, as both Griswold and Lochner did, certain types of laws. Rehnquist started this train of thought by noting that, consistent with procedural-justice research that would not see the light of day until a decade later,25 restrictions on law enforcement in the name of privacy not only handcuff police but might also lessen[] the pressure to obey the law by people who are normally lawabidingwhether they obey the law because of a sense of moral duty or because they fear being caught for their transgressions.26 What is the point of following the law, Rehnquist thought people might complain, if the government does not enforce it? He then tied this observation to his affinity for the civil libertarian aspects of Lochner. Rather than making law enforcement difficult in order to protect privacy, he reasoned, a better way of avoiding the corroding effect of undermining both respect for the law and willingness to obey the law might be to eliminate some of the more intrusive criminal statutes.27 Although his level of enthusiasm for this radical move is difficult to assess, he stated that it is not at all impossible that prostitution,
410 U.S. 113 (1973). The distinction was made most explicitly in Griswold, 381 U.S. at 482 (We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physicians role in one aspect of that relation.). 25 See TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990). 26 Rehnquist, supra note 12, at 19. 27 Id. at 20.
23 24
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pimping, and even marijuana-possession laws could join in purgatory the provisions struck down in Griswold and Roe!28 To be clear, he believed that decriminalization is the province of legislatures, not courts. But, presaging a debate that is heating up today,29 he labeled as compelling the argument that it is preferable to repeal a law that makes a particular act criminally punishable rather than to keep the law on the books but make it very difficult to enforce against those who transgress it.30 Another surprising set of claims Rehnquist made in Privacy, Youve Come a Long Way, Babyat least for those who think of him as a dyed-in-the-wool Crime Control Crusaderpresage modern-day debates about the inevitable tension between privacy on the one hand and the states increasing demand for personal information necessary to carry out its taxation and regulatory objectives on the other.31 As Rehnquist put it, [T]he stark fact of the matter is that one need in no way be under suspicion of having violated a law or breached a regulation in order for the government to begin to acquire information about him.32 He then stated that while a person could, in theory, avoid revelation of private details by declining government largesse and thus avoid
Id. Compare Jeffrey Bellin, Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, 97 IOWA L. REV. 1, 36 (2011) (arguing that police misuse of arrests for minor crimes should be fought by increasing Fourth Amendment protection in such situations), with Christopher Slobogin, Why Crime Severity Analysis is Not Reasonable , 97 IOWA L. REV. BULL. 1, 5-7 (2012), http://www.uiowa.edu/~ilr/bulletin/ILRB_97_Slobogin.pdf (arguing that abuses of discretion in minor cases should be addressed through eliminating vagueness-tainted minor crimes, not changing Fourth Amendment justification standards). In Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012), the Court refused to differentiate between serious and minor offenses in the context of strip searches prior to detention in jail, on the ground that even people arrested for disorderly conduct, trespass, and shoplifting could smuggle in contraband and weapons, see id. at 1523. The fourmember dissent found this danger to be minimal when weighed against the invasion and argued that strip searches should require reasonable suspicion. Id. at 1525 (Breyer, J., dissenting). Another solution, per Rehnquist, would be to decriminalize disorderly conduct and other minor offenses, or at least foreclose custodial arrests of those who commit such offenses. See supra text accompanying notes 28-30. 30 Rehnquist, supra note 12, at 21. 31 See, e.g., William Stuntz, Privacys Problem and the Law of Criminal Procedure , 93 MICH. L. REV. 1016, 1019 (1995) (arguing that a Fourth Amendment based on privacy is in significant tension with the states need to gather information relevant to the regulatory state). 32 Id. at 15.
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government regulatory inquiries, in the real world this may not be a very meaningful option.33 The latter observation is particularly interesting in light of the Courts statement two years later in United States v. Miller34 (a decision Rehnquist joined) that people voluntarily convey their financial information to banks.35 His 1974 lecture, read in context, is not necessarily inconsistent with that decision.36 But his language at least indicates a Justice aware of the tradeoffs.
II. IS AN EXPANDED RIGHT OF PRIVACY CONSISTENT WITH FAIR AND EFFECTIVE LAW ENFORCEMENT?: THREE PRINCIPLES
Much of the rest of Rehnquists 1974 article wrestles with the privacy implications of variations on one particular scenario: Government recording and dissemination of convictions, arrests, and sub-arrest detentions. It was in the course of discussing this topic that Rehnquist developed the three principles described earlier. Rehnquist began by stating what he regarded as a truism: Convictions and arrests are public events and thus cannot be private.37 Borrowing from Websters Dictionary, he defined the latter termwhich he believed to be largely coextensive with the protection afforded by the Fourth Amendmentas the quality or state of being apart from the company or observation of others or freedom from unauthorized oversight or observation, thus establishing what I am calling his first principle of the Fourth Amendment.38 Using this definition of privacy, Rehnquist quickly
Id. at 16. 425 U.S. 435 (1976). 35 Id. at 442. 36 Immediately after the quoted statement Rehnquist seemed to express a reluctance to carry the idea to its logical conclusion by stating:
33 34
[I]f we find significant policy obstacles to dispensing with the requirement that individuals who seek benefits from the government furnish information to show that they are entitled to the benefits, it may well be that some of the same policy arguments militate against the incautious imposition of additional restrictions on governmental information gathering in the area of criminal law enforcement. Rehnquist, supra note 12, at 18-19. 37 Id. at 8 (internal quotation marks omitted). 38 Id. at 4 (quoting WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 1804 (1961)).
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concluded that legitimate convictions and arrests (as distinguished from sub-arrest detentions) are public facts, and that any individual interest in expunging them is generally overridden by government informational needs.39 Furthermore, Rehnquist was loath to put significant limitations on dissemination of conviction and arrest data. He saw no reason to prevent such records from being revealed to other law enforcement agencies.40 Nor did he appear to have a problem with providing conviction or arrest records to potential employers. While he could see respectable arguments for withholding arrest data from the latter group given the possibility of inaccuracy and unfair prejudice, he suggested that an educational campaign would be a preferable way of handling any bias problem.41 With respect to presumably more reliable conviction records, not even disclosure to the public at large appeared to give him pause. Noting that recent trends had been to open up governmental activities to public inspection and to permit public access to many kinds of government records that were formerly thought to be confidential, he stated that it would take a far stronger claim of privacy than any I have heard made to require the opposite result in the case of criminal conviction.42 Fifteen years later Rehnquist would join an opinion upholding denial of a Freedom of Information Act (FOIA) request for a government rap sheet.43 But that decision was based on the rationale that the FOIA is meant to facilitate press and citizen access to what the Government is up to, not to records documenting individuals personal information.44 More representative of Rehnquists approach to privacy claims with respect to dissemination of criminal records are the holdings in Paul v. Davis45 and Smith v. Doe.46 In Davis, written by Rehnquist two years after the Kansas speech, the Court held that public
Id. at 8-9 (records of conviction); id. at10 (arrest records). Id. at 10. 41 Id. at 12. 42 Id. 43 U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762-63 (1989). 44 Id. at 780 (internal quotation marks omitted). 45 424 U.S. 693 (1976). 46 538 U.S. 84 (2003).
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distribution of flyers containing a picture of Davis and erroneously depicting him as an active shoplifter did not deprive him of liberty or property, regardless of any harm they may have done to his reputation.47 Rehnquist also characterized as far afield Daviss argument that the distribution of the flyers impinged his freedom of action in a sphere contended to be private; Rehnquist simply pointed to the fact that the arrest upon which the flyer was based was an official act.48 In Smith, Rehnquist joined an opinion that rejected an ex post facto claim against a sex-offender notification, in the course of which the Court stated that [a]lthough the public availability of the information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Acts registration and dissemination provisions, but from the fact of conviction, already a matter of public record.49 Thus, Rehnquist was not sympathetic to privacy challenges involving the disclosure, much less the recording, of convictions and arrests. But he was more reluctant to sanction lesser information-gathering endeavors, including government documentation of sub-arrest detentions. In the course of explaining why, he recognized that even activities that take place in public should often be immune from government observation, particularly when, to use the term coined earlier, they are panvasive. Rehnquist began his analysis by asking the reader to imagine that police officials station a car at the entrance of a popular bars parking lot every evening for two hours, solely for the purpose of taking down license numbers that are subsequently matched with names through motor vehicle records.50 He then stated:
If we assume that the bar has the necessary liquor license to sell drinks, that nothing more is known about the individuals patronizing the bar than that they happen to drive into its
Davis, 424 U.S. at 695, 712 (internal quotation marks omitted). Id. at 713. 49 Smith, 538 U.S. at 101. Rehnquist also joined the majority opinion in Whalen v. Roe, 429 U.S. 589 (1977), which held that neither the immediate nor the threatened impact of revealing patients identities to treatment personnel constituted an invasion of any right or liberty protected by the Fourteenth Amendment, id. at 603-04. 50 Rehnquist, supra note 12, at 9.
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parking lot at this hour, and that there are no other special circumstances present, I would guess that the great majority of people who might have the question posed to them would say that this is not a proper police function.51
Rehnquist apparently placed himself within this hypothesized majority. While he noted that, given the fact that other citizens could easily observe the activity, driving into a bar parking lot could not be considered private in any normal sense of the word, there would be an uneasiness, and I think a justified uneasiness, if those who patronized the bar felt that their names were being taken down and filed for future reference by the government.52 He went on to say that most of us would feel that . . . a dossier on every citizen ought not to be compiled even if manpower were available to do it.53 Coming from Rehnquist, these comments are remarkable, because they are contrary to the dogma, alluded to earlier, that the Court began developing even before he joined the Court: Outside the home, one cannot have a reasonable expectation of privacy in activity that occurs in full view of third parties. This idea was espoused even in the landmark and supposedly liberal case of Katz v. United States,54 which stated in 1967, several years before Rehnquist joined that Court, that [w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.55 It was repeated in several later cases involving tracking on public thoroughfares,56 flyovers of curtilage,57 and (in cases like Miller) accessing financial
Id. Id. 53 Id. at 10. 54 389 U.S. 347 (1967). 55 Id. at 351. 56 United States v. Knotts, 460 U.S. 276, 281-82 (1983) (When [the defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.). 57 California v. Ciraolo, 476 U.S. 207, 213-14 (1986) (Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. . . . [Therefore] we readily conclude that respondents expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.).
51 52
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and phone information from the companies that maintained it58 all of which Rehnquist joined. To be sure, in his University of Kansas Law Review article Rehnquist was careful to avoid saying that his bar hypothetical implicated the Fourth Amendment. Rather he distinguished our general aversion to governmental surveillance of even our most public acts from the core concerns of the [F]ourth [A]mendment privacy.59 The important point, however, is that whatever one calls the claim attributable to the bar patrons, Rehnquist thought it a viable one. This type of public surveillance was not, to Rehnquist, a proper government function. Furthermore, even though he stated that activities in a public place cannot be called private in a dictionary sense, he also recognized that people who engage in them can have a claim to privacy in a more general sense.60 Indeed, as a technical matter, the dictionary definition he quoted speaks of unauthorized oversight or observation.61 One can thus make the case that, even in Rehnquists own terms, privacy is infringed when government acquires information it is not authorized to acquire. The inevitable next question concerns when government information gathering is authorized. In developing what might be termed his second principle, Rehnquist suggested that there must be a particularized law enforcement interest to justify an infringement of privacy.62 But by this he did not necessarily mean individualized suspicion, as that term has been used in many Supreme Court cases, to refer to suspicion about a particular individual.63 Rather, he was quite willing to countenance a more general, programmatic government rationale.
58 Smith v. Maryland, 442 U.S. 735, 744 (1979) (When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and exposed that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.); United States v. Miller, 425 U.S. 435, 443 (1976) (The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.). 59 Rehnquist, supra note 12, at 14. 60 Id. at 13. 61 Id. at 4 (emphasis added) (internal quotation marks omitted). 62 Id. at 11. 63 Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976) (contrasting stops at a checkpoint with stops of individuals and stating that, although some
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For instance, building on the bar scenario he asserted that if, on two successive evenings, a patron of the bar had been killed during the evening hours in question a significantly different picture would be presented.64 Surveillance of the many innocent people observed during the stakeout would now be permissible, he stated, since the government has a legitimate interest in developing whatever information might be available about each patron of the bar during the time in question on subsequent nights.65 Similarly, Rehnquist wrote, photographing spectators at a series of rallies held by a presidential candidate, after police come to suspect that someone might be stalking the candidate, could be justified given the extraordinary gravity and seriousness of the situation.66 Both scenarios require invading the public anonymity of dozens or hundreds of people. But because they involve attempting to detect, apprehend, or preempt a killer, neither gave Rehnquist pause. This willingness to permit pan-investigations of public activities in the absence of individualized suspicion, but only if some type of legitimate justification exists, suggests a third principle behind Rehnquists comments. In other work, I have called it the proportionality principle, the idea that the justification for a government-investigative action ought to be proportionate to its intrusiveness.67 As Rehnquist put it, The very strong core-area interest of the individual in not having private papers in his home searched and seized by the government may be overridden because of what is considered the even stronger societal interest in permitting police, upon a proper showing, to conduct a search in order to apprehend and convict a criminal.68 At the same time, he stated, [T]he much lesser individual interest in not having public activities observed and recorded may prevail
quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure[,] . . . the Fourth Amendment imposes no irreducible requirement of such suspicion.). 64 Rehnquist, supra note 12, at 11. 65 Id. 66 Id. at 13. 67 See CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT 21 (2007); see also Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. REV. 1, 68-75 (1991). 68 Rehnquist, supra note 12, at 14.
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in the absence of any governmental justification for the surveillance.69 Thus, Rehnquist seemed to think that even minimal governmental intrusions required some, albeit minimal, justification.
III. IMPLICATIONS
To those familiar with the Courts Fourth Amendment jurisprudence, the previous sentence rings hollow. In the publicsurveillance and institutional-third-party cases noted above, Rehnquist joined or wrote decisions that permitted, in the absence of any justification whatsoever, government observation of or access to all sorts of activities and transactions, not only public ones but also many that most people would dub private.70 Rehnquists University of Kansas Law Review article might be written off as merely the product of a new Justice waxing philosophical about sub-constitutional matters that he knows will have no impact on the Courts docket. In none of the Supreme Court cases noted to this point, however, was the police action panvasive in nature. Rather, all of them involved an investigation of one individual for whom the government had developed at least some degree of suspicion. For instance, in Miller government agents had zeroed in on Miller as the operator of an illegal distillery at the time they requisitioned his bank records.71 In Smith v. Maryland,72 which held that phone records maintained by the phone company are not protected by the Fourth Amendment, the police already had reason to suspect that Smith was the perpetrator of a robbery before they obtained phone-company logs describing his phone calls.73 In each of the flyover cases, government agents or informants had fingered the
Id. For instance, while the Court has held that information given to a bank is not private for Fourth Amendment purposes, United States v. Miller, 425 U.S. 435, 441-42 (1976), most citizens would probably conclude otherwise. See Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at Understandings Recognized and Permitted by Society, 42 DUKE L.J. 727, 738-39 (1993) (reporting results of a survey indicating that participants believed [p]erusing bank records to be highly intrusive). 71 United States v. Miller, 425 U.S. 435, 437 (1976). 72 442 U.S. 735 (1979). 73 Id. at 737.
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defendants before aerial surveillance took place.74 In short, none of these cases can be analogized to Rehnquists bar example. Of course, a number of other cases decided during the Rehnquist eraspecifically, those involving regulatory inspections, roadblocks, and drug testing programsdid uphold dragnet-type police operations. Rehnquist could be counted upon to find for the government in these cases as well, and indeed was the only Justice to do so in all of them. With respect to regulatory searches, Rehnquist joined opinions upholding warrantless, nonparticularized inspections of coal mines75 and junkyards,76 and joined the dissent in a case holding that warrants are required to conduct non-consensual Occupational Safety and Health Administration inspections.77 He wrote or joined opinions upholding checkpoints designed to nab illegal immigrants,78 unlicensed drivers,79 drunk drivers,80 and (as in his modified bar example) witnesses to a crime.81 He also joined majority opinions upholding suspicionless drug testing of railway workers,82 customs agents,83 and school children.84 Furthermore, in the only three
74 See Florida v. Riley, 448 U.S. 445, 448-49 (1989) (flyover initiated by an anonymous tip that Riley was growing marijuana in his backyard); California v. Ciraolo, 476 U.S. 207, 209 (1986) (flyover initiated by an anonymous tip); Dow Chemical Co. v. United States, 476 U.S. 227, 229 (1986) (flyover occurred after Dow Chemical refused a second inspection). 75 Donovan v. Dewey, 452 U.S. 594, 608-09 (1981) (Rehnquist, J., concurring in the judgment). Rehnquist was careful to note in his concurrence that the inspection of the coal mine only involved observation of space largely visible to the naked eye without entrance onto the companys property. Id. at 609. He abandoned this fastidiousness in subsequent business-inspection cases. See infra notes 76-77 and accompanying text. 76 New York v. Burger, 482 U.S. 691, 712 (1987). 77 Marshall v. Barlows, Inc., 436 U.S. 307, 325 (1978) (Stevens, J., dissenting). 78 United States v. Martinez-Fuerte, 428 U.S. 543, 561-62 (1976). 79 In Delaware v. Prouse, 440 U.S. 648 (1979), Rehnquist dissented to an opinion holding that random stops to check licenses violate the Fourth Amendment. See id. at 664 (Rehnquist, J., dissenting). However, he agreed with the Courts dictum that checkpoints set up for the same purpose are constitutional, albeit with the observation that the majoritys dictum elevates the adage misery loves company to a novel role in Fourth Amendment jurisprudence. Id. 80 Mich. Dept of State Police v. Sitz, 496 U.S. 444, 455 (1990). Rehnquist wrote the majority opinion in this case. See id. 81 Illinois v. Lidster, 540 U.S. 419, 420 (2004). 82 Skinner v. Ry. Labor Execs. Assn, 489 U.S. 602, 634 (1989). 83 Natl Treasury Emps. Union v. Von Raab, 489 U.S. 656, 677 (1989). 84 Bd. of Educ. v. Earls, 536 U.S. 822, 830 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).
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roadblock and drug-testing cases in which the Court found against the government, he wrote or joined dissents.85 For instance, in Chandler v. Miller, where the other eight members of the Court voted to nullify a Georgia statute that required candidates for political office to undergo drug testing,86 Rehnquist wrote a scathing dissenting opinion arguing that the Courts reasoning would also prohibit a state from requiring candidates to undergo a general health examination.87 So Rehnquist was a constant, and occasionally the lone, voice in favor of panvasive searches and seizures. But in each case he was able to find a particularized government rationale. Whether it was the dangers of coal mining, the use of junkyards to hide car theft, illegal immigration, drunk driving, or the ravages of drug usage, Rehnquist could point to a significant problem that the search and seizure program was meant to address.88 In a few of these cases, the government interest Rehnquist identified was admittedly amorphous. In Chandler, for instance, he stressed that the use of illegal drugs and abuse of legal drugs is one of the major problems of our society without providing any concrete evidence that Georgia candidates were afflicted by this problem,89 a point he implicitly recognized by stating at the end of his opinion that [n]othing in the Fourth Amendment or in any other part of the Constitution prevents a State from enacting a statute whose principal vice is that it may seem misguided or even silly to the Members of this Court.90 And in City of Indianapolis v. Edmond,91 he authored a dissent that appeared to permit roadblocks at the governments whim, as long as they are administered in a non-discriminatory fashion.92 He specifically
85 See City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (Rehnquist, J., dissenting); Ferguson v. City of Charleston, 532 U.S. 67, 91 (2001) (Scalia, J., dissenting); Chandler v. Miller, 520 U.S. 305, 323 (1997) (Rehnquist, C.J., dissenting). 86 See Chandler, 520 U.S. at 322-23. 87 See id. at 327-28 (Rehnquist, C.J., dissenting). 88 See, e.g., Mich. Dept of State Police v. Sitz, 496 U.S. 444, 451 (1990) ( No one can seriously dispute the magnitude of the drunken driving problem or the States interest in eradicating it.). 89 Chandler, 520 U.S. at 324 (Rehnquist, C.J., dissenting). 90 Id. at 328. 91 531 U.S. 32 (2000). 92 Id. at 53 (Rehnquist, C.J., dissenting) (These stops effectively serve the States legitimate interests; they are executed in a regularized and neutral manner; and they
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objected to the majoritys holding that roadblocks set up to achieve ordinary law enforcement interests were unconstitutional in the absence of individualized suspicion.93 Yet even in Chandler and Edmond, Rehnquist tried to identify a concrete law-enforcement problem the panvasive technique could address. In Chandler, he mentioned the possibility that drug use by politicians could increase the risk of corruption and the handling of sensitive information.94 In Edmond, he emphasized that while the roadblock was designed in part to interdict drugs, it was also set up to check licenses (as indicated by the fact that forty-nine drivers who went through the roadblock were arrested for non-drug offenses).95 Furthermore, as solicitous as he was of roadblocks in Edmond, he never explicitly sanctioned them as a method of checking cars for evidence of any and all crime. Rather, he simply stated that [e]fforts to enforce the law on public highways used by millions of motorists are obviously necessary to our society96 after referencing United States v. Martinez-Fuerte97 and Michigan Department of State Police v. Sitz,98 the Court cases that upheld checkpoints near the border for illegal immigrants and sobriety checkpoints. Using what he called balancing analysis, Rehnquist concluded that these specified government interests were sufficient to justify the intrusion involved, which he viewed as minimal.99 At bottom, none of these cases involved the type of random information gathering involved in Rehnquists bar example, which in 1974 he stated was not a proper police function.100 What would he say today if confronted with the panvasive investigative
only minimally intrude upon the privacy of the motorists. They should therefore be constitutional.). 93 Id. at 55 (criticizing the majoritys holding that at least some individualized suspicion is required for general law enforcement at checkpoints by stating that the Courts newfound non-law-enforcement primary purpose test is both unnecessary to secure Fourth Amendment rights and bound to produce wide-ranging litigation over the purpose of any given seizure). 94 Chandler, 520 U.S. at 326-27 (Rehnquist, C.J., dissenting). 95 Edmond, 531 U.S. at 51 (Rehnquist, C.J., dissenting). 96 Id. at 55. 97 428 U.S. 543, 561-62 (1976). 98 496 U.S. 444, 455 (1990). 99 Id. at 455. 100 Rehnquist, supra note 12, at 9.
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methods described at the beginning of this Essay? How would he react to the specter of cameras recording everyones public travels, gargantuan data-mining programs, dragnet tracking, and citywide aerial surveillance? At this point, answers to these questions can only be pure speculation. But it is speculation worth pursuing, since it exposes how even a very conservative Justice might react negatively to dragnet surveillance. First, consider two solutions proffered by others. The first is to limit such panvasive techniques to investigation of serious crimes.101 The second is to place no limitations on the use of these techniques but rather to restrict the information so gathered to prosecution of serious offenses.102 If he were to remain consistent with his 1974 article, Rehnquist would be unlikely to choose either route. As noted earlier, for procedural-justice reasons he would prefer repealing laws prohibiting lesser transgressions to making them difficult to enforce.103 Moreover, given his avid support for the Supreme Courts decision in Whren v. United States,104 which permits valid
101 See Bellin, supra note 29, at 6 ([A]s judges develop new rules to apply the Fourth Amendment in the modern era, they incorporate the severity of the crime being investigated into determinations of constitutional reasonableness.); William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842, 875 (2001) ([T]he worst crimes are the most important ones to solve, the ones worth paying the largest price in intrusions on citizens liberty and privacy.); Sherry F. Colb, The Qualitative Dimension of Fourth Amendment Reasonableness, 98 COLUM. L. REV. 1642, 1662 (1998) (The main problem with current Supreme Court doctrine in the Fourth Amendment area is its almost complete failure to engage in any substantive scrutiny at all . . . .). 102 See SIMON CHESTERMAN, ONE NATION UNDER SURVEILLANCE: A NEW SOCIAL CONTRACT TO DEFEND FREEDOM WITHOUT SACRIFICING LIBERTY 5 (2011) ([T]he point of this book is to shift the focus away from questions of whether and how governments should collect information and onto more problematic and relevant questions concerning its use.); Orin S. Kerr, Use Restrictions and the Future of Surveillance Law, in CONSTITUTION 3.0: FREEDOM AND TECHNOLOGICAL CHANGE 37, 39-45 (Jeffrey Rosen & Benjamin Wittes eds., 2011) (Computer surveillance uses widespread collection and analysis of less intrusive information to yield clues normally observable only through the collection of more intrusive information. To achieve those benefits, the law will need to allow relatively widespread collection of data but then give greater emphasis and attention to their use and disclosure.); William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2183 (2002) (Instead of limiting what search tactics the government can use or requiring permission when it uses them, we could limit what the government does with the information once it has it.). 103 See supra notes 25-30 and accompanying text. 104 517 U.S. 806 (1996).
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seizures for minor violations even when the polices real agenda is to gather evidence of more serous criminality, he appeared to view arrests for infractions that remain on the books as an excellent crime-control mechanism.105 Presumably, then, he would have been reluctant to adopt a rule cabining governments ability to use technology as a means of sniffing these infractions out. Rehnquist might have been more attracted to an approach imposing restrictions on use rather than restrictions on acquisition. However, two aspects of his 1974 article suggest he would have been reluctant to adopt this scheme as well. First, the article, as well as his opinions in Davis and Smith, make clear that he was reluctant to limit law enforcement use of legitimately acquired information, whatever its nature.106 Second, and most importantly, his article registered real concern about panvasive searchesas he put it, actions that smacked of government dossier creation107if they are conducted in the absence of any justification. Instead of adopting one of these approaches, Rehnquist more likely would have engaged in the balancing analysis apparent in Chandler, Edmond, and his other Fourth Amendment opinions and consistent with the third principleproportionalityimplicit in his article.108 On the individual interest side of the balance, one familiar with his body of work on the Court would not be unreasonable in concluding that he would have considered the degree of intrusion connected with public surveillance and data mining minimal. Indeed, had he been on the Court in the 20112012 term when it decided United States v. Jones,109 the most important, recent Fourth Amendment privacy case, he might well have been a lone dissenter, disagreeing with both the legal fiction endorsed by the majoritythat placement of a GPS device on a
105 City of Indianapolis v. Edmond, 531 U.S. 32, 52 (2000) (Rehnquist, J., dissenting) (Once the constitutional requirements for a particular seizure are satisfied, the subjective expectations of those responsible for it, be it police officers or members of a city council, are irrelevant.); see also Scott v. United States, 436 U.S. 128, 136 (1978) (Subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional). 106 See supra notes 40-49 and accompanying text. 107 Rehnquist, supra note 12, at 10. 108 See Bradley, supra note 14, at 104 (noting Rehnquist would reason that [e]ach search must be assessed according to its reasonableness.). 109 132 S. Ct. 945 (2012).
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car violates a property interestand the expansive notion of privacy championed by the concurring opinionsthat prolonged tracking is a search.110 Yet Jones, like Miller and most other Court cases dealing with the definition of search, involved investigation of a single person.111 If his 1974 article is any guide, when considering the individual interests associated with panvasive surveillance, Rehnquist was more willing to ascribe weight to what he called the sense of unease that comes from government information gathering.112 While he might have drawn a distinction between the visible police vehicle in his bar scenario and the usually covert nature of technological surveillance, his distaste for governmentcompiled dossiers suggests he would recognize that such a distinction quickly dissipates once people find out about government programs capable of monitoring the public activities of the entire population and of trawling through billions of data points.113 Given the views expressed in his University of Kansas Law Review article, then, it seems likely that Rehnquist would have been bothered by the panvasiveness of modern technological surveillance and that instead his focus would have been on the nature of the government interest. The problem for him in the bar scenario was the complete lack of justification for the police activity. The usual justification given for modern camera
110 Rehnquist would have had problems with the majority opinion in Jones because he consistently distinguished cars from homes in Fourth Amendment cases. See, e.g., Rakas v. Illinois, 439 U.S. 128, 148 (1978) (Rehnquist majority opinion emphasizing that [w]e have on numerous occasions pointed out that cars are not to be treated identically with houses or Apartments for Fourth Amendment purposes ); see also Edmond, 531 U.S. at 55. He would have trouble with the concurring opinions because he would have been reluctant to reverse the Courts cases holding that one does not have privacy in public. See, e.g., Bond v. United States, 529 U.S. 334, 337 (2000) (Rehnquist majority opinion distinguishing manipulation of luggage from flyover cases by noting that the latter involved only visual, as opposed to tactile, observation). 111 After developing reason to believe Jones was a drug trafficker, police tracked Jones via a GPS device planted on his car for almost a month. Jones, 132 S. Ct. at 948. 112 See supra text accompanying notes 52-53. 113 See, e.g., Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 334-36 (2008) (reporting results of a survey indicating that people view many types of camera surveillance and record gathering to be more intrusive than a roadblock and, in some circumstances, more intrusive than a frisk).
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surveillance or data mining is that it allows government to detect otherwise hard-to-detect crime or maintain order through deterrence.114 Admittedly, these justifications are not completely irrational. But unless confined to prevent something of extraordinary gravity and seriousness,115 as in the presidentialrally example he proffered in his University of Kansas Law Review article, they are even weaker and less specific than the rationales Rehnquist was willing to accept in Chandler and Edmond. Perhaps they nonetheless would have struck him as adequate, at least as a matter of Fourth Amendment law. Perhaps, however, he would finally have drawn a line, remembering the qualms he expressed back in 1974.116
CONCLUSION
My own preference with respect to regulation of panvasive investigative techniques combines political-process theory with a more robust version of Rehnquists proportionality reasoning.117 If the panvasive technique is authorized, directly or through appropriate delegation, by a legislative body that is truly representative of the targeted polity, and if it applies evenly to all (including the officials who authorize the technique), it should be upheld unless it fails to meet the traditional rational basis test. If no such legislative authorization exists (which describes almost every dragnet case considered by the Court during the Rehnquist era),118 then seizures or searches conducted during such programs should be based on suspicion proportionate to the degree of intrusion.
See SLOBOGIN, supra note 67, at 84-88 (cameras); id. at 169-70 (records access). Rehnquist, supra note 12, at 13. 116 Possibly relevant here is the statement Rehnquist made in Donovan v. Dewey, 452 U.S. 594, 608 (1981) (Rehnquist, J., concurring in the judgment), that: I have no doubt that had Congress enacted a criminal statute similar to that involved here authorizing, for example, unannounced warrantless searches of property reasonably thought to house unlawful drug activitythe warrantless search would be struck down under our existing Fourth Amendment line of decisions. Would proportionality reasoning have led him also to strike down suspicionless surveillance of people and records found outside ones property? 117 See Christopher Slobogin, Government Dragnets, 73 LAW & CONTEMP. PROBS. 107 (2010). 118 Id. at 136.
114 115
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Rehnquist clearly would not have required a legislative enactment in these situations. But he did appear to prefer that authorization for dragnets come from a supervisory executive official and be applied in a non-discriminatory fashion.119 And while he likely would have found most such legislative or executive authorizations of panvasive actions rational, the burden of this Essay has been to show that even he would have required some specifiable reason for such actions, roughly proportionate to their intrusiveness. If the Justice often considered the least friendly to the Fourth Amendment had reservations about unregulated panvasive methods, the current Court should as well.120
119 See City of Indianapolis v. Edmond, 531 U.S. 32, 53 (2000) (Rehnquist, J., dissenting); Mich. Dept of State Police v. Sitz, 496 U.S. 444, 452-53 (1990) (Rehnquist majority opinion noting that the sobriety checkpoint location was selected by the director of the state police pursuant to . . . guidelines and that the guidelines governing the police minimize police discretion). 120 Cf. Edmond, 531 U.S. at 56 (Thomas, J., dissenting) (I r ather doubt that the Framers of the Fourth Amendment would have considered reasonable a program of indiscriminate stops of individuals not suspected of wrongdoing.).
TERRY UNBOUND
Carol S. Steiker*
INTRODUCTION ........................................................................ 329 I. THE SERIOUSNESS OF TERRY-TYPE INTRUSIONS ................ 333 II. PREVENTING PERVERSE POLICE INCENTIVES .................... 342 III. ADDRESSING RACIAL DISPARITIES IN LAW ENFORCEMENT .......................................................... 349 IV. REHNQUISTS POST-TERRY LEGACY IN NEW YORK CITY TODAY ..................................................... 354 CONCLUSION ............................................................................ 357 This past summer, on June 17, 2012, thousands of people marched in New York City to protest the stop-and-frisk policies of the New York Police Department (NYPD). Organizers of the protest contended that the NYPDs practices single[d] out minority groups and create[d] an atmosphere of martial law for the citys black and Latino residents.1 Marchers carried signs that read, among other things, Skin Color Is Not Reasonable Suspicion and Stop & Frisk: The New Jim Crow.2 The previous month, the New York Civil Liberties Union (NYCLU) issued a report on the NYPDs stop-and-frisk program, based on information from the NYPDs own computerized database of its program, which the NYCLU had successfully sued the department to obtain.3 The NYCLUs report closely analyzed the nearly 700,000 stop-and-frisks performed during the previous year (2011) and published findings that formed the basis of the protest organizers call to action.4 Those findings included the following
* Henry J. Friendly Professor of Law, Harvard Law School. 1 John Leland & Colin Moynihan, Thousands March Silently to Protest Stop-andFrisk Policies, N.Y. TIMES, June 18, 2012, at A15. 2 Id. (internal quotation marks omitted). 3 See Stop-and-Frisk 2011: NYCLU Briefing, NYCLU (May 9, 2012), http://www.nyclu.org/files/publications/NYCLU_2011_Stop-and-Frisk_Report.pdf. 4 See id.
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troubling facts and figures: Frisk rates varied enormously by precinct, with the highest rates in the least white parts of the city; blacks and Latinos were substantially more likely than whites to be stopped (and if stopped, frisked) but, among those frisked, were less likely than whites to be found with a weapon; the number of stops of young black men exceeded the entire city population of young black men; and ninety percent of the young black and Latino men who were stopped were innocent.5 Such disparities in street police encounters are not new; rather, they have long been the subject of complaints against the NYPD. In 1999, the Center for Constitutional Rights (CCR) filed a class action against the City of New York alleging unconstitutional racial profiling in the Departments stop-andfrisk program.6 This complaint eventually yielded a consent decree in 2003, under which the City and the Department agreed to implement a number of remedial measures intended to reduce racial disparities in stops and frisks.7 After the consent decree expired, the CCR filed a new class action against the City in 2008, alleging that the Department had failed to reform adequately its policies and practices. The CCR has retained an expertJeffrey Fagan, a criminologist and Columbia Law School professorwho produced a lengthy study of the 2.8 million written stop-and-frisk police reports entered into the NYPDs database between 2004 and 2009. His analysis of disparate treatment on the basis of race and ethnicity, which the court has recently deemed admissible over the Citys objections,8 yielded the following findings, which offer methodologically sophisticated support for the findings of the NYCLUs report: The racial composition of a local area within the City is a significant predictor of stop-and-frisk patterns, even after controlling for crime, social conditions, and police resources;
See Stop-and-Frisk 2011, supra note 3. Daniels, et al. v. the City of New YorkOur Cases, CENTER CONST. RTS., http://ccrjustice.org/ourcases/past-cases/daniels%2C-et-al.-v.-city-new-york#files (last visited Jan. 10, 2013). 7 See Stipulation of Settlement at 5-11, Daniels v. City of New York, No. 99 Civ. 1695 (SAS) (S.D.N.Y. Sept. 24, 2003), available at http://ccrjustice.org/files/Daniels_StipulationOfSettlement_12_03_0.pdf. 8 See Floyd v. City of New York, 861 F. Supp. 2d 274, 288-90 (S.D.N.Y. 2012) (finding Fagans disparate treatment analysis admissible and his reasonable suspicion analysis and classification system largely admissible).
5 6
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blacks and Latinos are more likely to be stopped by NYPD officers, even in low-crime and racially heterogeneous neighborhoods and even when controlling for neighborhood crime rates and police patrol strength; and blacks and Latinos are treated more harshly during stop-and-frisk encounters with NYPD officers than whites who are stopped on suspicion of the same or similar crimes.9 In addition to ruling Fagans testimony admissible, the court has recently granted class certification in the case, and the litigation remains ongoing.10 Lest one think that the NYPDs aggressive stop-and-frisk program is yet another aberration peculiar to New York City and of interest only to its denizens,11 it is worth noting that the recent march protesting the program was reported not only by the New York Times, the New York Post, and the Wall Street Journal, but also by the L.A. Times, the Boston Globe, the Guardian, and Al Jazeera. Media outlets from across the political spectrum including Fox News and OccupyWallSt.orgcovered the march in detail, and hundreds of videos of the protest were posted on YouTube. National experts have publicly debated the role of the stop-and-frisk program in either producing or threatening New York Citys vaunted crime drop of the past two decades.12 Moreover, other cities have faced similar issues regarding their own stop-and-frisk programs. For example, Philadelphia faced a similar class-action lawsuit and recently entered into a consent decree regarding its own stop-and-frisk policies,13 while San Franciscos mayor recently drew fire by floating the possibility of
9 Id. at 281-82, 282 n.29 (quoting Declaration of Jeffrey Fagan in Support of Plaintiffs Opposition to Defendants Motion to Exclude Plaintiffs Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan 4(a)-(d)). 10 See Floyd v. City of New York, 283 F.R.D. 153, 178 (2012) (granting class certification). For recent developments in related litigation see infra n. 122. 11 See Matt Stopera, 48 Things Youll Only See in New York City , BUZZFEED, http://www.buzzfeed.com/mjs538/things-youll-only-see-in-new-york. 12 See Heather Mac Donald et al., Does Stop and Frisk Reduce Crime?, N.Y. TIMES ROOM FOR DEBATE (July 17, 2012), http://www.nytimes.com/roomfordebate/2012/07/17/does-stop-and-frisk-reduce-crime/. 13 See Erica Goode, Philadelphia Defends Policy on Frisking, with Limits , N.Y. TIMES, July 12, 2012, at A11.
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adopting a policy similar to those used by New York and Philadelphia.14 What, you may be wondering, does all this recent hot contention about the appropriateness and legality of stop-andfrisk policies have to do with William H. Rehnquist, as Justice and Chief Justice? After all, the landmark caseTerry v. Ohio15that gave the Supreme Courts constitutional imprimatur to the practice of police stop-and-frisks was a decision handed down before Rehnquist even joined the Court, and authored by liberal icon Chief Justice Earl Warren, the leading contender for the role of anti-Rehnquist in the Courts history. Indeed, Terrys break with previous Fourth Amendment law to authorize searches and seizures on less than probable cause has led many commentators to question Earl Warren and the Warren Courts liberal bona fides in criminal procedure.16 My contention in this symposium on Rehnquists legacy on the Court is that a comparison of Warrens opinion for the Court in Terry with Rehnquists opinions on later Terry issues reveals some crucial differences in emphasis. In particular, Warren and Rehnquist part ways in their evaluation of the seriousness of the intrusion entailed by stop-and-frisks, their consideration of potentially perverse police incentives created by Fourth Amendment standards, and their concern about racial disparities in law enforcement on the ground. These divergences, taken together, are profound, and they suggest that the Burger and Rehnquist Courts later constructions and extensions of Terry have yielded a doctrineand a law-enforcement licensefar
14 See Terry Collins, Outcry After SF Mayor Considers Stop-and-Frisk, HUFFINGTON POST (July 18, 2012), http://www.huffingtonpost.com/huffwires/20120718/us-sf-stop-and-frisk-/. 15 392 U.S. 1 (1968). 16 See, e.g., Earl C. Dudley, Jr., Terry v. Ohio , The Warren Court, and the Fourth Amendment: A Law Clerks Perspective, 72 ST. JOHNS L. REV. 891, 898 (1998) (The knee-jerk liberal, pro-defendant, anti-police image that the Court in general, and Chief Justice Warren and Justice Brennan in particular, have been saddled with over the years is quite plainly undeserved, at least as far as the Fourth Amendment is concerned.). See generally Yale Kamisar, The Warren Court (Was It Really So DefenseMinded?), The Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices, in THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASNT 62 (Vincent Blasi ed.,1983) (countering the portrayal of the Warren Court as defense-oriented).
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broader than anything Warren would have accepted, based on his foundational opinion for the Court. It is Rehnquists views and innovations, in particular, that have shaped a constitutional doctrine that is flexible or pernicious enough (depending on ones point of view) to prompt law enforcement practices like the NYPDs current stop-and-frisk program. In what follows, I try neither to argue for nor to hide my own view that Warren has the better position in his differences with Rehnquists later opinions. Rather, I conclude that, regardless of whose perspective one shares, the progressively unbound Terry doctrine and the controversial law enforcement practices that are currently conducted under its aegis must be consideredfor better or for worseas Rehnquists legacy far more than Warrens.
I. THE SERIOUSNESS OF TERRY-TYPE INTRUSIONS

A preliminary question in Terry was whether a stop-and-frisk is a search or seizure at all for the purposes of the Fourth Amendment. Chief Justice Warren quickly and resoundingly repudiated the suggestion that stop-and-frisks might lie entirely outside the realm of constitutional protection: We emphatically reject this notion.17 However, a more subtle dispute remained and intensified as the Warren Court gave way to the Burger and Rehnquist Courts. Just how serious an intrusion is a Terry stopand-frisk? What kinds of interests do citizens have in avoiding such interactions with law enforcement? What is the social cost of false positives in this context? The answers to these questions are not susceptible of simple yes or no responses and thus are inevitably a matter of degree and nuance. Nonetheless, answers to these questions necessarily inform decisions both about the scope of the doctrine and about its application in particular cases. Chief Justice Warren in Terry and Justice/Chief Justice Rehnquist in later cases demonstrated profoundly different intuitions about the seriousness of Terry-type intrusions. Rehnquists opinions illustrate his generally far more dismissive viewa view that emerges from an in-depth consideration of Rehnquists treatment of the issue of intrusiveness, both in the abstract and in the
17
Terry, 392 U.S. at 16.
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context of his attempts to weigh and measure it in concrete fact situations. Let us turn first to Chief Justice Warren in Terry itself. Warrens evaluation of the intrusiveness of the police conduct at issue is revealed both in the language that he used to describe it and in his attempt to cabin the scope of the holding in the case. In rejecting the claim that a stop-and-frisk is not a Fourth Amendment search or seizure, Warren took issue with the characterization of such an event as a mere minor inconvenience and petty indignity.18 Warren scoffed:
[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a petty indignity. It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. 19
He later underscored the point: Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.20 Moreover, Warren recognized that the indignity of the stop-andfrisk might sometimes be the point of the encounter, rather than an unfortunate side effect that can be minimized or mitigated. Warren quoted then-recent scholarship on policing to the effect that some police use of stop-and-frisks is motivated by the officers perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.21 Warrens recognition of the seriousness of the intrusion imposed by police stop-and-frisks led him to attempt to confine the holding in Terry to narrow bounds. In particular, Warren maintained that the case posed only the question of the legality of the frisk conducted by Officer McFaddenbut not the question of the legality of any prior stop of the suspects. With some
18 19 20 21
Id. at 10 (internal quotation marks omitted). Id. at 16-17 (footnote omitted). Id. at 24-25. Id. at 14 n.11 (internal quotation marks omitted).
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straining of plausibility, Warren asserted that the record in the case was unclear about whether Officer McFaddens exchange with Terry and his companions prior to frisking them constituted a restraint on their liberty amounting to a constitutional seizure.22 This reading of the factual record allowed Warren to conclude, We thus decide nothing today concerning the constitutional propriety of an investigative seizure upon less than probable cause for purposes of detention and/or interrogation.23 Warren wrote for an eight-to-one majority over a solo dissent by Justice Douglas, but Justices Harlan and White each wrote separate, solo concurrences urging that the power to frisk must entail the power to make a prior forcible stop to investigate certain serious crimes, such as the attempted burglary that Officer McFadden suspected in Terry. Although Harlan and Whites concurrences in Terry suggested which way the wind was already blowing with regard to the constitutionality of stops in addition to frisks, it was Justice Rehnquist who wrote the first opinion for the Court explicitly making the leap. In Adams v. Williams,24 the first Supreme Court decision post-Terry to revisit the issue of stop-andfrisks, Rehnquist wrote, A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.25 Interestingly, Rehnquist did not claim to be breaking any new ground, despite Warrens explicit reservation of exactly that question in Terry. Rather, Rehnquist selectively quoted and paraphrased from Terry to make it seem as if his assertion about investigative stops was supported by the case, sandwiching the above quote with citations from Warrens opinion.26 He then followed the above quote with the claim that [t]he Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect
22 23 24 25 26
Id. at 19 n.16. Id. 407 U.S. 143 (1972). Id. at 146. See id.
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himself,27 when the Terry Court had specifically declined to decide whether investigatory stops were ever reasonable. The ease with which Rehnquist read and extended Terry to authorize investigative stops as well as frisks reflected his greater comfort with Terry-type intrusions. To Rehnquist, police stop-andfrisks were a far cry from full-blown searches and seizures. In one of his most important post-Terry opinions, Illinois v. Wardlow,28 thenChief Justice Rehnquist found sufficient reasonable suspicion for a lawful Terry stop in an individuals unprovoked flight from the police in a high crime area.29 Rehnquist reasoned that [t]he Terry stop is a far more minimal intrusion [than an arrest]30 and emphasized its brevity, rather than its potential for humiliation: It simply allow[s] the officer to briefly investigate further.31 Justice Stevens, writing for four dissenters in Wardlow, quoted Warren in Terry on the resentment that Terry stops are likely to provoke, noting that such a reaction is even more likely in a Wardlow flight scenario:
The resentment engendered by that intrusion is aggravated, not mitigated, if the officers entire justification for the stop is the belief that the individual is simply trying to avoid contact with the police or move from one place to anotheras he or she has a right to do (and do rapidly).32
It was far more natural for Rehnquist to aggregate the social costs of denying police the tool of the investigatory stop-and-frisk than to aggregate the social costs of the false positives that Terrys lowered standard of suspicion necessarily entailed. In Rehnquists view, to restrict stop-and-frisks was to require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.33 The aggregate social costs of policemen shrugging at suspected crime were obvious to Rehnquist. But aggregating the social costs of the threats to the
27 28 29 30 31 32 33
Id. (emphasis added). 528 U.S. 119 (2000). Id. at 124. Id. at 126. Id. Id. at 127 n.1 (Stevens, J., concurring in part and dissenting in part). Adams v. Williams, 407 U.S. 143, 145 (1972).
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innocent of broader stop and frisk power was not so obvious. For example, in Ybarra v. Illinois,34 Rehnquist dissented from the Courts holding that police officers executing a narcotics search warrant for a bar and its bartender could not also lawfully frisk the dozen patrons present in the bar without further individualized suspicion to believe that they were armed and dangerous. In Rehnquists view, the Court should have concluded that the presence of the patrons in the bar during the execution of the warrant posed enough of a threat to the safety of the police to render them subject to frisk. Rehnquist did not answer how many people merely present at the execution of a warrant should be subject to frisk without further suspicion, content to leave that determination to the amorphous calculus of reasonableness.35 Almost two decades after Ybarra, Rehnquist won a majority on an analogous issue, holding in Maryland v. Wilson36 that police conducting lawful traffic stops could order passengers to get out of the car pending completion of the stop, without any further individualized suspicion. Rehnquist reasoned that passengers might pose a danger to the police conducting the stop, and that once the car was stopped, the additional intrusion on the passenger is minimal.37 In dissent, Justice Stevens questioned Rehnquists grounds for concluding that ordering passengers out of the car would make police officers safer and noted that the sheer ubiquity of traffic stops meant that the minimal intrusions authorized by the majority would quickly add up:
[C]ountless citizens who cherish individual liberty and are offended, embarrassed, and sometimes provoked by arbitrary official commands may well consider the burden to be significant. In all events, the aggregation of thousands upon thousands of petty indignities has an impact on freedom that I would characterize as substantial, and which in my view clearly outweighs the evanescent safety concerns pressed by the majority.38
34 35 36 37 38
444 U.S. 85 (1979). Id. at 109 (Rehnquist, J., dissenting). 519 U.S. 408 (1997). Id. at 415. Id. at 419 (Stevens, J., dissenting) (footnote omitted).
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The facts of United States v. Montoya de Hernandez39 present a more dramatic example of the same dispute (also between Rehnquist and Stevens). In Montoya, customs officials stopped the respondent as she disembarked from a flight from Bogota, Columbia, to Los Angeles because they suspected her of smuggling drugs in her alimentary canal (that is, by swallowing them in balloon packets to be passed through her digestive tract). Respondent refused to submit voluntarily to an X-ray, claiming to be pregnant. In the hopes that nature would take its course and that the respondent would begin passing drugs when she defecated, the officials detained her in a small room for a period that totaled almost twenty-four hoursalmost sixteen hours until the officials sought a warrant and almost eight more hours until a magistrate finally authorized a pregnancy test, X-ray, and rectal exam (because the respondent managed to resist defecating during her lengthy detention). Rehnquist wrote for the Court in upholding the detention under the Fourth Amendment, quoting his own prior opinion in Adams v. Williams to the effect that a police officer with suspicion less than probable cause should not be required to shrug his shoulders and allow . . . a criminal to escape.40 While Rehnquist did acknowledge that the [r]espondents detention was long, uncomfortable, indeed, humiliating,41 he placed the blame for it squarely on the respondent herself: [B]oth its length and its discomfort resulted solely from the method by which she chose to smuggle illicit drugs into this country.42 This claim ignores the fact that the low threshold of suspicion required for such detentions necessarily means that many blameless people who are not smugglers at all will be subject to the same treatment. Stevens concurred in the result because respondent had been offered but had refused the option of a voluntary X-ray examination, but he noted the fallacy of Rehnquists argument: [W]e must assume that a significant number of innocent persons will be required to undergo similar procedures.43
39 40 41 42 43
473 U.S. 531 (1985). Id. at 544. Id. Id. (emphasis added). Id. at 545 (Stevens, J., concurring in the judgment).
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Another airport-stop case further illustrates Rehnquists reluctance to aggregate the burdens imposed by detentions on mere suspicion rather than probable cause. In a rare limitation on airport stops, the Court in Florida v. Royer44 held that the questioning and detention of a suspect who fit a drug courier profile exceeded the permissible bounds of an investigative stop. Two narcotics detectives approached Royer as he sought to board a flight from Miami to New York, asked for his airline ticket and identification, andwithout returning those documentsasked him to come with them to small room off the airport concourse where they brought his checked luggage without his consent and then asked for his consent to open it. Royer permitted the detectives to search his bags, both of which were found to contain marijuana. The Court rejected the governments contention that the entire interaction was consensual and held instead that Royers detention exceeded Fourth Amendment limits (and thus that his consent was the fruit of his unlawful seizure). The plurality opinion by Justice White suggested that investigative detentions on less than probable cause generally should be no more intrusive than necessary to achieve their ends. White noted that in this case, the officers conduct was more intrusive than necessary to effectuate an investigative detention otherwise authorized by the Terry line of cases45 because the officers could have made clear to Royer that he was free to go (thus converting the interaction into the consensual encounter that the government insisted it was), or the officers could have refrained from moving Royer to a separate police room unless particular circumstances suggested such a move was warranted, or the officers could have used drug-sniffing dogs for a more expeditious investigation of the contents of Royers luggage.46 Rehnquist wrote a disdainful dissent that described the plurality opinion as meandering and betraying a mind-set more useful to those who officiate at shuffleboard games, primarily concerned with which particular square the disc has landed on, than to those who are seeking to administer a system of justice whose twin purposes are the conviction of the guilty and the
44 45 46
460 U.S. 491 (1983) (plurality opinion). Id. at 504. See id. at 504-05.
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vindication of the innocent.47 Rehnquist saved special scorn, however, for the pluralitys suggestion that Terry stops should be governed by a least restrictive means test. To the pluralitys list of less restrictive investigative options available to the detectives in Royer, Rehnquist responded with a mix of exasperation and derision:
All of this to my mind adds up to little more than saying that if my aunt were a man, she would be my uncle. The officers might have taken different steps than they did to investigate Royer, but the same may be said of virtually every investigative encounter that has more than one step to it. The question we must decide is what was unreasonable about the steps which these officers took with respect to this suspect . . . .48
By focusing on the particular investigation of Royerwhich after all did yield illegal contrabandRehnquist narrowed the frame so as to necessarily exclude all of the future interventions, including false positives, that his analysis would authorize. The Rehnquist opinion that was most dismissive, by far, of the intrusiveness of police stops was Rehnquists solo dissent in Delaware v. Prouse.49 In an eight-to-one decision, the Court struck down discretionary suspicionless car stops for the purpose of performing license and registration checks. The Court, per Justice White, rested its decision on the intrusiveness of car stops and concerns about abuses of police discretion in allocating such intrusions. Car stops, observed the Court, not only interfere with freedom of movement and are inconvenient but also may create substantial anxiety.50 The Court noted that non-discretionary fixed checkpoints for such purposes do not pose the same constitutional problem, in large part because motorists will feel less singled out at checkpoints and thus find them less anxietyproducing. As the Court observed, at fixed checkpoints the motorist can see that other vehicles are being stopped, he can see
47 48 49 50
Id. at 519-20 (Rehnquist, J., dissenting). Id. at 528-29. 440 U.S. 648 (1979). Id. at 657.
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visible signs of the officers authority, and he is much less likely to be frightened or annoyed by the intrusion.51 Rehnquists lone dissent in Prouse was frankly incredulous of the Courts description of a citizens likely reaction to a police stop, putting scare quotes around the adjectives used by the majority opinion: Because motorists, apparently like sheep, are much less likely to be frightened or annoyed when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists.52 Later in the opinion, Rehnquist repeated the observation with more scare quotes around the rest of the majoritys descriptive adjectives: To comply with the Fourth Amendment, the State need only subject all citizens to the same anxiety and inconvenien[ce] to which it now subjects only a few.53 Rehnquist portrayed the Courts fairly mundane burdensharing solution as a novel application of the adage misery loves company that Rehnquist found curiouser and curiouser as one attempts to follow the Courts explanation for it.54 Rehnquist was mystified by the idea that assuring the fair distribution of the burdens of intrusive police conduct might be part of Fourth Amendment reasonableness. Rather, Rehnquist described the Courts concern about the distribution of police intrusions as the most diaphanous of citizen interests.55 Prouse gives some sense of just how far Rehnquist would have extended police authority to stop citizens on the public streets. Further insight comes from Rehnquists dissent from denial of certiorari in Massachusetts v. Podgurski.56 In that case, the Massachusetts Supreme Judicial Court had suppressed hashish found in an occupied van because a police officer had stuck his head through the vans sliding door that was partially open (eighteen inches) based on a vague dispatchers call to check
51 52 53 54 55 56
Id. Id. at 664 (Rehnquist, J., dissenting). Id. at 666. Id. at 664. Id. at 666. 459 U.S. 1222 (1983).
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[t]wo men inside a van acting suspicious.57 The Massachusetts Court found that the officers conduct constituted a search of the van on less than probable cause, beyond what was authorized by Terry. Rehnquist urged the Court to grant review to establish a sliding scale that would permit minimal intrusions like the one at issue even in the absence of the reasonable articulable suspicion called for by Terry.58 In all of his Fourth Amendment opinions, Rehnquist made no secret of his preference for a general reasonableness inquiry rather than an inquiry restricted to consideration of the specific thresholds of probable cause and reasonable suspicion. But his Podgurski dissent from denial is the clearest expression of both the sliding scale that Rehnquist would endorse and his generally dismissive attitude toward the minimal intrusiveness of much police investigatory conduct.
II. PREVENTING PERVERSE POLICE INCENTIVES

Warrens opinion in Terry not only underscored the seriousness of the police intrusion at issue, it also sought to limit as far as possible the license the Courts decision gave to law enforcement, most notably in Warrens ultimately failed attempt to forestall the Courts endorsement of investigatory stops on less than probable cause. Warren explicitly noted the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation,59 and he sought to craft a doctrine that would produce rules which are intelligible to the police and the public alike.60 In contrast, in Rehnquists postTerry opinions and votes, he consistently sought to expand the discretionary license granted to law-enforcement officials, starting with investigatory stops and ultimately going much further. Moreover, Rehnquists opinions in support of these expansions repeatedly ignored or discounted concerns about potentially perverse incentives that broader police license would create. Most notably, in his opinion for the Court in Adams v. Williams, Rehnquist ignored powerful warnings about perverse
57 Id. at 1223 (Rehnquist, J., dissenting from denial of cert.) (internal quotation marks omitted). 58 Id. 59 Terry v. Ohio, 392 U.S. 1, 17 (1968) (emphasis added). 60 Id. at 17 n.15 (emphasis added).
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police incentives cited at length in Justice Brennans dissent warnings that originated from none other than Judge Henry Friendly. The case had come to the Supreme Court from the Second Circuit, and Friendly had dissented from the panel decision denying relief (and later managed to convince the en banc Second Circuit to reverse in a brief per curiam opinion).61 Judge Friendly was one of the most respected federal judges of his era and not particularly left-leaning on criminal justice issues.62 His dissent from the panel decision was strongly worded, expressing the gravest hesitancy about expanding Terry to allow for investigatory stops in narcotics cases.63 Such an expansion would, in Friendlys view, allow the tail to wag the dog: There is too much danger that, instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true.64 Moreover, Friendly was concerned about allowing an unnamed informants tip to form the sole basis for a police officers reasonable suspicion, rather than the direct observations of an experienced police officer, like Officer McFadden in Terry itself. Friendly was surprisingly frank in expressing his concerns about police perjury: It would be too easy, he observed, for an anonymous tip to be manufactured by the officer after the event.65 With regard to the particular facts of Adams v. Williams, Friendly said, There is no . . . guarantee of a patrolling officers veracity when he testifies to a tip from an unnamed informer saying no more than that the officer will find a gun and narcotics on a man across the street, as he later does.66 Although Brennans dissent consisted of a brief paragraph followed by two
61 See Williams v. Adams, 436 F.2d 30 (2d Cir. 1970), revd en banc, 441 F.2d 394 (2d Cir. 1971) (per curiam). 62 See DAVID M. DORSEN, HENRY FRIENDLY: GREATEST JUDGE OF HIS ERA 181 (2012) (Friendly did not hesitate to criticize Supreme Court decisions that he found unduly handcuffed law enforcement and imposed excessive burdens on attempts to convict the guilty.). 63 Williams, 436 F.2d at 38 (Friendly, J., dissenting). 64 Id. 65 Id. 66 Id. at 38-39 (footnote omitted). To be clear, Friendly was not accusing the officer in the case of perjury; rather, as he explained, While the findings of the Connecticut courts and the district court preclude our holding that the unnamed informer did not exist in this case, we can take the danger of fabrication into account in framing a general rule. Id. at 38 n.8.
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full pages of Friendlys warnings, Rehnquist did not address Friendlys concerns about police incentives at all in his opinion for the Court. In a separate dissent in Adams v. Williams, Justice Marshall worried that the Courts expansion of Terrys delicate balance would allow stops and frisks at the whim of police officers who have only the slightest suspicion of improper conduct.67 Marshall castigated himself for having failed earlier to see the wisdom of Justice Douglass sole dissent in Terry, in which Douglas warned of powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees.68 Marshalls grim dissent, however, was premature; in a corollary to the false summit that mountain climbers experience when they prematurely think they have reached the top of a mountain only to find that the peak lies further uphill, there can be experiences of false nadir as well. Marshall simply could not have foreseen in 1972 just how much further Terry would be expanded on Rehnquists watch in ways that would create yet new incentives for police to use its license in questionable ways. Perhaps the biggest leaps that Terry took with Rehnquists approval (though he did not author the opinions) were first, its extension to authorize police frisks of car interiors during car stops when police have reasonable suspicion to believe that the suspect might pose a danger if permitted to reenter the vehicle,69 and second, its extension to authorize police frisks of houses when police executing an arrest warrant reasonably fear the presence others in the house who might pose a danger to the police.70 Each of these extensions posed the same tail-wagging-dog problem that Friendly flagged in Adams v. Williams that car stops and warrant executions might be undertaken by police not for their own sake but in order to perform the extensive frisks that they permit. In a series of Fourth Amendment decisions outside of the specific Terry context, Rehnquist remained impervious to the
Adams v. Williams, 407 U.S. 143, 162 (1972) (Marshall, J., dissenting). Id. at 161 (quoting Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting) (internal quotation marks omitted)). 69 See Michigan v. Long, 463 U.S. 1032 (1983). 70 See Maryland v. Buie, 494 U.S. 325 (1990).
67 68
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general concern that expanded police license to search and seize would lead the police to use any such expansions beyond their intended scope. For example, in United States v. Robinson,71 Rehnquist wrote for the Court authorizing police officers to conduct a full search of an arrestees person during the course of a custodial arrest, whether or not the officers have any reason to think that they will find weapons or evidence. In Robinson, the arrest was for the offense of driving without a license, and the officer opened a crumpled cigarette packet found in Robinsons pocket to reveal heroin. Writing in dissent, Justice Marshall argued that custodial arrests should automatically grant the police license to conduct only a Terry pat-down, rather than a full search. Marshall noted that in Robinsons particular case, there were allegations in the record (unresolved by the lower court) that the officer had acted pretextually in arresting Robinson for a traffic offense. Marshall argued that such allegations raise a systemic concern: [T]he powers granted the police in this case are strong ones, subject to potential abuse. . . . There is always the possibility that a police officer, lacking probable cause to obtain a search warrant, will use a traffic arrest as a pretext to conduct a search.72 In his opinion for the Court in Robinson, Rehnquist not only declined to address Robinsons specific allegations of pretext, but also ignored the general problem of expanded police incentives for pretextual action. Similarly, a decade later in Texas v. Brown,73 Rehnquist wrote for a plurality of the Court authorizing the police to seize an item in plain view upon probable cause to believe that it contained contraband, reversing the lower courts decision requiring police to know that an item in plain view is subject to seizure. The facts of the case involved a police officer conducting a license-andregistration check at a fixed checkpoint who saw an opaque, green party balloon knotted at the tip fall from the drivers hand to the seat beside him. Rehnquist concluded that the officer properly seized and inspected the item because the officers expertise gave him probable cause to believe that the balloon contained narcotics. Justice Stevens, concurring in the judgment, criticized
71 72 73
414 U.S. 218 (1973). Id. at 248 (Marshall, J., dissenting). 460 U.S. 730 (1983) (plurality).
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Rehnquists plurality opinion for failing to distinguish the issue of seizure of the balloon from the issue of its further inspection and the introduction of its contents into evidence, in light of the Courts precedents requiring judicial warrants for the opening of closed containers found in plain view.74 Stevens worried about the incentives that a broad reading of Rehnquists opinion would permit. He observed that in situations where an officer who is executing a valid search for one item seizes a different item the Court in the past had been sensitive to the danger . . . that officers will enlarge a specific authorization . . . into the equivalent of a general warrant to rummage and seize at will.75 Once again, Rehnquist did not feel the need to address this argument regarding police incentives in his plurality opinion. Yet another decade later, Rehnquist dissented from an opinion for the Court in another plain view case that quoted approvingly Stevenss concerns in Brown. In Minnesota v. Dickerson,76 the Court upheld a plain feel analog to the plain view exception to the warrant requirement, holding that the police may develop probable cause to seize an item during a Terry frisk if the items feel is distinctive enough to the touch to generate a sufficient level of suspicion. However, the Court held that the facts of Dickerson indicated that the frisking officer had manipulated the contents of Dickersons pocket more extensively than Terry permitted and affirmed the Minnesota Supreme Courts judgment that the drugs found during the search must be suppressed. In doing so, the Court quoted not only Stevenss concurrence in Brown but also Warrens opinion in Terry itself about the need to keep the legal bounds of a frisk strictly circumscribed.77 Rehnquist dissented on the ground that, in his view, the record was not sufficiently clear about whether the officer exceeded the lawful bounds of a Terry frisk, and therefore a remand for further fact-finding was more appropriate than an affirmance of the suppression order.78 Once again, no comment
Id. at 747 (Stevens, J., concurring in the judgment). Id. at 748. 76 508 U.S. 366 (1993). 77 Id. at 378 (quoting Terry v. Ohio, 392 U.S. 1, 26 (1968) (internal quotation marks omitted)). 78 Id. at 383 (Rehnquist, C.J., concurring in part and dissenting in part).
74 75
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from Rehnquist about the need to address perverse police incentives. Rehnquists insouciance about expanded police discretion is most apparent in the traffic stop context. In Prouse, Rehnquist, alone on the Court, would have been willing to uphold discretionary license-and-registration checks of motorists without any individualized suspicion at all. In his Prouse dissent, Rehnquist finally did address directly the issue of potential police abuse of such broad discretion, as this concern was the focal point of the majority opinion. Rehnquist started with a burden-shifting argument to the effect that those raising concerns about police abuse of discretion should bear the burden of proving the validity of such concerns because state acts are accompanied by a presumption of validity until shown otherwise.79 Applying this presumption to the discretionary license-and-registration checks at issue in Prouse itself, Rehnquist observed: Although a system of discretionary stops could conceivably be abused, the record before us contains no showing that such abuse is probable or even likely.80 However, less than two decades later, when the petitioners in Whren v. United States81 attempted to show that their stop for a civil traffic violation was in fact a pretextual, racebased stop to look for drugs, Rehnquist joined the Court in holding such concerns outside of the scope of the Fourth Amendment.82 The very next Term after Whren, Rehnquist wrote for the Court in Maryland v. Wilson83 and extended police authority during traffic stops to order passengers, as well as drivers, out of cars. Justice Kennedy noted in dissent that Whren had removed any constraint on police abuse of the new power granted in Wilson, concluding that the two decisions together put[] tens of millions of passengers at risk of arbitrary control by the police.84
Delaware v. Prouse, 440 U.S. 648, 667 (1979) (Rehnquist, J., dissenting). Id. 81 517 U.S. 806 (1996). 82 Id. at 813 (We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.). 83 519 U.S. 408 (1997). 84 Id. at 423 (Kennedy, J., dissenting).
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Interestingly, it is in the traffic context that Rehnquist was most willing to extend police authority, even though it is exactly that context in which police discretion is least cabined. As Bill Stuntz bluntly observed, because traffic laws are defined to include thoroughly ordinary behavior like driving a few miles per hour over the speed limit, the police have the power to stop anyone, anytime, for any reason.85 Despite this breadth of authority, Rehnquist remained decidedly hostile to all potential modes of controlling potential abuses of discretion. In his dissent in Prouse, Rehnquist seemed genuinely mystified by the Courts preference for fixed checkpoints to stop all motorists over discretionary stops by police patrols. Yet, fixed checkpoints bring to bear two powerful limits on unbridled discretion. First, burden sharing: If the whole community has to share the burden of law enforcement practices, there will be a political check on police abuses.86 Second, scarcity: Stopping all motorists is expensive, and thus, abuse of fixed checkpoints is subject to resource constraints. Of course, one could always dispense with such oblique forms of regulation and allow direct litigation about police abuses in individual cases. Yet Rehnquist voted with the Court in Whren against making claims of pretextual, discriminatory law enforcement cognizable under the Fourth Amendment. It is fair to say that the need to curb perverse police incentives created by expansive Fourth Amendment license simply did not make it onto Rehnquists radar screennot even as part of the freewheeling reasonableness inquiry favored by Rehnquist in Fourth Amendment cases.
85 William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842, 853-54 (2001). See generally Kim Forde-Mazrui, Ruling Out the Rule of Law, 60 VAND. L. REV. 1497 (2007) (arguing that the degree of discretion delegated to law enforcement through specific laws in the traffic context is as great as has ever been accomplished through vague laws, and specificity does not constrain discretion unless judicial limits are placed either on the scope of activities that may be criminalized or on police authority to enforce the laws). 86 See Tracey L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. CHI. LEGAL F. 197, 209 (1998) (promoting community burden sharing as a check on police abuse).
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III. ADDRESSING RACIAL DISPARITIES IN LAW ENFORCEMENT

Writing in Terry in the flashpoint year of 1968, Warren was exquisitely sensitive to the issue of racial discrimination in law enforcement. Warren acknowledged concerns about the wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain,87 though he expressed skepticism that the exclusionary rule could provide more than a futile protest against such practices.88 Warren cited extensively from the Presidents Commission on Law Enforcement and Administration of Justice Task Force Report on the police, noting the friction caused by aggressive police field interrogations and acknowledging the role of frisks as a severely exacerbating factor in police-community tensions.89 Warren sought to fire a shot across the bow, at least rhetorically, with regard to the wholesale harassment of which minority communities complained:
Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.90
Warrens rhetoric may well have been in response to Justice Brennans urging. In his extensive correspondence with Warren over the drafting of Terry, Brennan worried about unleashing police tactics that would aggravate the already white heat resentment of ghetto Negroes against the police.91 Consequently,
Terry v. Ohio, 392 U.S. 1, 14 (1968). Id. at 15 (concluding that the exclusionary rule could never effectively control police harassment because many police encounters are initiated for purposes unrelated to the prosecution of crime). 89 Id. at 14 n.11. 90 Id. at 15. 91 See John Q. Barrett, Deciding the Stop and Frisk Cases: A Look Inside the Supreme Courts Conference, 72 ST. JOHNS L. REV. 749, 826 (1998) (quoting Letter from Justice William J. Brennan, Jr. to Chief Justice Earl Warren 2 (Mar. 14, 1968), available in William J. Brennan, Jr. Papers, cont. 171, Manuscript Division, Library of Congress).
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Brennan exhorted Warren to pay close attention to the wording of the decision, because the tone of our opinion may be even more important than what we say.92 Rehnquists post-Terry opinions did not display the same rhetorical care with regard to questions of race or ethnicity. Rehnquist joined, though he did not author, the only two decisions of the Court allowing overt considerations of ethnicity under the Fourth Amendment, both of which involved border stops. In United States v. Brignoni-Ponce,93 the Court allowed apparent Mexican ancestry to be a relevantbut not the onlyfactor for the purposes of establishing reasonable suspicion under Terry for motorist stops near the Mexican border by roving border patrol agents. In United States v. Martinez-Fuerte,94 the Court went further, allowing officials to have discretion to refer some motorists stopped at fixed checkpoints near the Mexican border to a secondary inspection area, even if such referrals were made largely on the basis of apparent Mexican ancestry.95 Rehnquist was less than meticulous in his paraphrasing of the Courts Martinez-Fuerte holding almost a decade later. In United States v. Montoya de Hernandez,96 upholding the almost twenty-four-hour detention of a suspected balloon-swallowing international drug smuggler, Rehnquist described the special latitude given to border security and described the holding of Martinez-Fuerte as follows: Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity.97 Actually, the opinion for the Court in Martinez-Fuerte stressed that the initial checkpoint stop was of all motorists and thus partook of the reassuring features that the Court had stressed, over Rehnquists dissent, in Prouse.98 Because the extra element of intrusiveness in being referred to a
Id. 422 U.S. 873 (1975). 94 428 U.S. 543 (1976). 95 Id. at 563. 96 473 U.S. 531 (1985). 97 Id. at 538. 98 Martinez-Fuerte, 428 U.S. at 558 (At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers authority, and he is much less likely to be frightened or annoyed by the intrusion. (quoting United States v. Ortiz, 422 U.S. 891, 894-95 (1975) (internal quotation marks omitted)).
92 93
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secondary inspection area was minimal, the Court upheld the discretion of checkpoint officials to make such referrals, even on the basis of ethnicity.99 This more careful holding is not exactly the same as Rehnquists more expansive version, in which the initial checkpoint stop itself could turn on motorists ethnicity. With regard to race, as opposed to ethnicity, Rehnquist also declined to tread as carefully as Warren. In United States v. Sokolow,100 Rehnquist wrote for the Court upholding the use of a drug courier profile to support reasonable suspicion for a Terry stop of an air traveler. The DEA agents who stopped Sokolow explained that their observations of him matched a DEA profile for drug couriers. Rehnquist held that the agents observations did indeed generate sufficient reasonable suspicion to stop Sokolow, and that the fact that their observations matched a profile did not detract from their evidentiary significance.101 The agents testified to such relevant (if underwhelming) facts as Sokolows purchase of his expensive tickets with cash, his travel to a city that served as a source for drugs, and his brief stay in that city. But the agents also testified, more oddly, to Sokolows attire namely, his black jumpsuit and gold jewelry. This piece of the drug courier profile had drawn fire from Judge Norris in the Ninth Circuit, who blasted as offensive the sociological assumptions embedded in such an inference.102 Despite this vigorous challenge from the lower court, Rehnquist blandly recited, more than once, Sokolows sartorial choices without further comment about whether (or why) they formed a legitimate part of the agents reasonable suspicion. On this point, Justice Marshalls dissent echoed Judge Norris, lambasting Rehnquists opinion for its repeated and unexplained allusions to Sokolows style of dress.103 While Sokolow was not itself a race casethere is no indication that Sokolow was black, nor did Norris or Marshall speak explicitly about raceSokolows style of dress undoubtedly called to mind widely held stereotypes about drug
Id. at 560 (emphasis added). 490 U.S. 1 (1989). 101 Id. at 10. 102 United States v. Sokolow, 808 F.2d 1366, 1370 (9th Cir.), amended by 831 F.2d 1413 (9th Cir. 1987), revd, 490 U.S. 1 (1989). 103 Sokolow, 490 U.S. at 16 (Marshall, J., dissenting).
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dealers in inner-city, black communities. Indeed, the year before Sokolow was decided in the Supreme Court, a film parodying the blaxploitation films of the 1970s played off of the stereotyped connection between (black) drug dealers and gold jewelry: The plot of Im Gonna Git You Sucka revolved around the (black) protagonist seeking revenge on a (black) local crime lord for the death of his brother caused by an overdose of gold chains.104 Rehnquists unwillingness to address the topic of race in his post-Terry opinions was most apparent and most important in his decision for the Court in Wardlow, holding that an individuals flight from the police in a high crime area sufficed to establish reasonable suspicion for a Terry stop.105 Unlike Sokolow, there can be no denying that Wardlow was a race case. Both Wardlow and the state of Illinois directly addressed race in their briefs before the Court, and the NAACP Legal Defense Fund (LDF) filed an amicus brief explaining the racial significance of the issue before the Court: The weakening of the Terry standard prayed for by Petitioners here would deal a serious blow to the efforts of the Legal Defense Fund and other civil rights organization to eradicate race-based police practices . . . .106 The Wardlow case implicated race in two distinct ways. First, counsel for Wardlow, along with the LDF and the American Civil Liberties Union (ACLU), argued that the use of flight from the police to sustain reasonable suspicion is unwarranted because innocent members of minority groups are likely to flee the police to avoid police harassment, not because they are guilty of criminal wrongdoing.107 Their briefs echoed and supplemented Warrens opinion for the Court in Terry in documenting the problem of
104 See IM GONNA GIT YOU SUCKA (Front Films 1988) (written by, directed by, and starring Keenen Ivory Wayans). The initial DVD release was in 2001; MGM rereleased it in 2010. See IMDB, IM GONNA GIT YOU SUCKA (1998), Company Credits, http://www.imdb.com/title/tt0095348/companycredits (last visited Jan. 22, 2013). 105 Illinois v. Wardlow, 528 U.S. 119 (2000). 106 Brief for the NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae in Support of Respondent at 2, Illinois v. Wardlow, 528 U.S. 119 (2000) (No. 98-1036), 1999 WL 606996 at *2. 107 See Brief for Respondent at 9, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 607000 at *15 n.10; Brief for the NAACP Legal Defense & Educational Fund, Inc., supra note 106, at 8-21; Brief Amicus Curiae of the American Civil Liberties Union et al. in Support of Respondent at 24, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 590721 at *20-24.
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police harassment of minorities on the street. Justice Stevenss dissent for four members of the Court extensively cited this documentation of police harassment, including Warrens opinion in Terry,108 concluding that:
[T]he evidence supporting the reasonableness of these beliefs [that contact with the police can be dangerous even to the innocent, especially for minorities and those residing in high crime areas] is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.109
Second, reliance on the fact that the stop in Wardlow took place in a high crime area raised the concern that the case would authorize especially aggressive policing in minority communities, which are often plagued by elevated crime rates. As counsel for Wardlow argued to the Court, reference to an areas high rate of crime can easily serve as a faade[] or prox[y] for race.110 Moreover, as Justice Stevens noted in dissent, because many factors providing innocent motivations for unprovoked flight are concentrated in high crime areas, the character of the neighborhood arguably makes an inference of guilt less appropriate, rather than more so.111 To all of these concerns about the racial implications of the holding in Wardlow, Rehnquist responded withutter silence. He acknowledged that [r]espondent and amici also argue that there are innocent reasons for flight from police, but failed to engage on the key point regarding the prevalence of police harassment in high crime minority neighborhoods.112 One can read the majority opinion from beginning to end without receiving any inkling that the issues it addressed were thought to have profound implications for police-citizen relations in minority communities,
108 Wardlow, 528 U.S. at 132 n.7 (Stevens, J., concurring in part and dissenting in part) (quoting the Presidents Commission on Law Enforcement and Administration of Justice Task Force Report: The Police, on abusive police practices and friction between minorities and the police) (citing Terry). 109 Id. at 133-34. 110 Brief for Respondent, supra note 107, at 37. 111 Wardlow, 528 U.S. at 139 (Stevens, J., concurring in part and dissenting in part). 112 Id. at 125 (majority opinion).
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both by the major civil rights organizations that wrote as amici and by the four dissenting Justices. While both Warrens opinion in Terry and Rehnquists opinion in Wardlow broke significant new ground in terms of authorizing police conduct that had previously been prevalent but constitutionally questionable, their respective acknowledgment and concern about the potential racial implications of their holdings could not have been more different.
IV. REHNQUISTS POST-TERRY LEGACY IN NEW YORK CITY TODAY

Comparing Rehnquists post-Terry cases to Warrens opinion in Terry itself is more than an exercise in Supreme Court inside baseball. Rather, such a comparison suggests that there have been numerous roads not taken in the aftermath of Terry including paths that might have regulated much more strictly the stop-and-frisk power, especially with regard to preventing police abuses and discriminatory applications. The controversy over New York Citys current stop-and-frisk practices illustrates how the trajectory Terry has followed since 1968 has mattered in shaping policy. In particular, each of the differences between the perspectives of Warren and Rehnquist elaborated above are implicated in the debate over the legality and wisdom of the NYPDs stop-and-frisk practices. Intrusiveness: One of the most common and passionate modes of critique of the NYPDs stop-and-frisk practices is the firstperson narrative of the experience of humiliating intrusion. Of course, some of these narratives complain of abuses that clearly fall outside of the realm of authorized police conduct. But many such narratives simply flesh out what stop-and-frisks of the everyday type feel like, especially to residents of neighborhoods that are subject to a high volume of such police conduct. As one New York Times reporter describes the current practice, based on recent interviews with New York City residents, Most of the time, the officers swoop in, hornetlike, with a command to stop: Yo! You, come here. Get against the wall.113 Many of those stopped described aggressive or hostile attitudes by the police. They talk
113 Wendy Ruderman, Rude or Polite, Citys Officers Leave Raw Feelings in Stops , N.Y. TIMES, June 27, 2012, at A1.
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to you like youre ignorant, like youre an animal, said one young man in Brooklyn.114 A teenager in Queens said, They curse at us. They treat us like we killed somebody.115 Even when the police were more polite, those who were stopped described feeling harassed.116 Moreover, many of those interviewed believed that officers had stopped them because of raceand race alone.117 These experiences have led some to explain that they would not willingly cooperate with law enforcement.118 Such responses are consistent with a growing body of literature that suggests that not only cooperation with law enforcement, but also compliance with legal norms, is influenced by perceptions of the fairness of law enforcement.119 Taking seriously the intrusiveness of Terry stop-and-frisks and their potential impact both on cooperation with law enforcement and compliance with legal norms might well have led to much more stringent limitation on its use. In particular, Warrens hesitancy to extend Terry to authorize investigatory detentions, Judge Friendlys warnings against using such detentions in narcotics cases and permitting unnamed informants to provide the basis for reasonable suspicion, and the Wardlow dissenters concerns about the use of flight in high crime areas to authorize stop-and-frisks might have been heeded had the postTerry Court been operating with a different balance of intrusiveness vs. law enforcement necessity in mind. Incentives: The debate about incentives in the Terry context has involved two primary concernsthe fear that law enforcement officials will push any license to (or past) the limits of its logic, and
Id. Id. 116 Id. See also Richard F., On the Corner, in 12 ANGRY MEN: TRUE STORIES OF BEING A BLACK MAN IN AMERICA TODAY 55, 55-60 (Gregory S. Parks & Matthew W. Hughey ed., 2010) (describing the experience of frequent stop-and-frisks in East Harlem in New York City). 117 Ruderman, supra note 111. 118 See id. (reporting that one interviewee said that he and other neighborhood teenagers had become so bitter that even if they had information about a crime, they would not share it with the police); Richard F., supra note 116, at 59 (I really dont trust [the police] at all. If I got robbed walking down the street, I would never think to call the police.). 119 See, e.g., Symposium, Legitimacy and Criminal Justice , 6 OHIO ST. J. CRIM. L. 123 (2008).
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the fear that broad license to stop-and-frisk will be used pretextually and discriminatorily. Both of these concerns are validated by New York Citys stop-and-frisk experience. Perhaps the most striking feature of the NYPDs recent stop-and-frisk practices is the sheer enormity of the increase in the use of stops in the recent past. From 2002 to 2011, the number of stops made by the NYPD grew from just under 100,000 per year to just under 700,000 per yeara seven-fold increase in less than a decade.120 The apparent elasticity of the number of stop-and-frisks that are considered legal and appropriate by the NYPD underscores the concern that law enforcement officials will push their constitutional authorization to its outside bounds, and even beyond. Tellingly, in Jeffrey Fagans recent study of five years of police reports filed in New York stop-and-frisks, officers checked the box corresponding to high crime area in approximately fiftyfive percent of all stops, regardless of whether the stop took place in a precinct or census tract with average, high, or low crime.121 This practice suggests that some members of the NYPD may be pushing the license granted in Wardlow to make more stops in high crime areas well beyond any appropriate bounds. As for incentives to use broad discretion pretextually and discriminatorily, those concerns lie at the heart of the pending class action against the city.122
See Stop-and-Frisk 2011, supra note 3, at 3. See Floyd v. City of New York, 861 F. Supp. 2d 274, 284 (S.D.N.Y. 2012) (citing Fagans proposed expert testimony). 122 The judge presiding over the pending Floyd class action recently decided a smaller, related class-action suit alleging constitutional violations by the NYPD in performing stops without the requisite reasonable suspicion pursuant to New York Citys Trespass Affidavit Program (TAP), which authorizes police officers to patrol in thousands of private apartment complexes around the city (a program formerly known in the Bronx as Operation Clean Halls). See Ligon, et al. v. City of New York, 12 Civ. 2274 (SAS), at 7 (S.D. N.Y. Jan. 8, 2013), available at http://www.nyclu.org/files/releases/CleanHallsRuling_1.8.13.pdf. The court ruled in favor of the plaintiffs, finding that while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. Id. at 10. The court held that its remedial ruling would be consolidated with the remedial portion of the larger Floyd class action litigation, which challenges the NYPDs entire stop-and-frisk program, after a determination on the merits of the liability question in Floyd. Id. at 144-45.
120 121
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Race: The pending class action and the recent protest march with which this Article began were animated by the widespread perceptionsupported both by raw data and by the more sophisticated analysis of that data by Jeffrey Faganthat the NYPD is targeting racial minorities in its use of the stop-and-frisk power. In Terry, Warren insisted that the remedy of evidentiary exclusion must remain available for overbearing or harassing police activity.123 However, with Rehnquists approval, Whren precluded a Fourth Amendment exclusion remedy for pretextual searches and seizures based on race, leaving a civil rights suit as the only constitutional remedy for such abuses. Although the pending class-action suit cannot change the nature and scope of the constitutional license granted by the Supreme Court, it can change the way in which that license is implemented by the NYPDby the courts judgment in the case or by negotiated consent decree. The ongoing litigation thus may yield a verdict not only on the persuasiveness of the evidence of racial discrimination with regard to the NYPDs stop-and-frisk practices but also (if such evidence is found) on the efficacy of the structure of constitutional remedies fashioned by the post-Terry Court.
**************
Nothing in the foregoing is meant to suggest that the postTerry expansions sanctioned by Rehnquist constitutionally authorize the current NYPD stop-and-frisk practices; that, after all, is exactly what the pending class action is meant to determine. Rather, the tension between Warrens perspective in Terry and Rehnquists perspective in his post-Terry cases is reflected in the current debates about the legality and wisdom of the NYPDs practices. Moreover, that tension helps to illuminate the range of potential constitutional constraints on the stop-and-frisk power that have been largely neglected or abandoned as Rehnquists perspective has triumphed over Warrens. Rehnquists triumph has not been complete, as even he found himself in the dissent at times along the way. However, on the key issues canvassed above,
123 See Terry v. Ohio, 392 U.S. 1, 15 (1968) (When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.).
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the weight of the Courts authority swung much farther in Rehnquists direction than Warrens. Thus, it is only fair to conclude that current stop-and-frisk practices are the legacy of Rehnquists Promethean Terry, much more than Warrens bounded version.
REHNQUISTS FOURTH: A PORTRAIT OF THE JUSTICE AS A LAW AND ORDER MAN

James J. Tomkovicz*
INTRODUCTION ................................................................. 360 I. WILLIAM REHNQUISTS FOURTH AMENDMENT............................................................. 364 A. The Fourth Amendments Balance ........................ 364 B. Rehnquists Perspectives on the Fourth Amendment Balance: A Broad Brush Portrait .......................................... 366 C. Painting by the Numbers: A Quantitative Sketch of William Rehnquists Votes and Opinions in Fourth Amendment Cases ........... 368 D. William Rehnquists Fourth Amendment Premises: A Qualitative Portrait ............................ 380 1. The Negatives: Rehnquists Hostility Toward the Governing Norms.......................... 381 a. Rehnquists Approach to the Search and Seizure Thresholds: Shrinking the Fourth Amendments Purview ....................................................... 381 b. Rehnquists Attitude Toward the Probable Cause Norm: Diluting Its Force and Limiting Its Domain .................. 385 c. Rehnquists View of the Search Warrant Requirement: Overt Hostility and Wholesale Rejection ............................. 388
* Edward F. Howrey Professor of Law, University of Iowa College of Law. I am grateful to Professor Thomas Clancy and the National Center for Justice and the Rule of Law for the generous invitation to participate in this Symposium and to the University of Iowa College of Law for research support. I am also indebted to four outstanding research assistants, James Duncan, Stephanie Hernan, Phillip Van Liew, and Ryan Melcher for their dedicated research and editorial work.
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d. Rehnquists Position on the Exclusionary Rule: Utter Contempt and Overt Resistance .................................. 391 e. Rehnquists Refusal to Accept Pro-Fourth Amendment Premises .............. 395 2. The Positives: Rehnquists Approach to Fourth Amendment Interpretation ............. 403 E. The Rehnquist Style: The Process, Methods, Tactics, and Strategy Used to Right the Fourth Amendment Ship........................ 408 F. A Brief Assessment of William Rehnquists Influence on Fourth Amendment Law ................... 416 1. Fourth Amendment Trends from 1972-2005: Steady Rehnquistian Movement ......................................................... 416 2. The Course of Fourth Amendment Jurisprudence Since 2005: WWWRT? ............. 419 CONCLUSION................................................................. 441 INTRODUCTION
My first reaction to participation in this Symposium was negative. I was inclined to forego the opportunity because I thought I knew all there was to know about former Chief Justice Rehnquists Fourth Amendment views. I knew of an abiding hostility toward and an indiscriminate campaign to demolish the vital civil liberties granted by that provision, and I believed that any honest analysis would be brief and redundant. Many legal scholars had already documented the undisputable nature of Rehnquists efforts to unravel the Fourth Amendment tapestry.1 In other words, as an academic who fancies himself a civil libertarian, I reacted with a very closed mind, certain that William Rehnquist had been unfaithful to that guarantee to further his conservative political agenda. My disagreement with his perspectives, and with so many of his Fourth Amendment interpretations, prompted me to question his honesty, to assume
1 See infra note 215 (citing a number of scholarly articles documenting William Rehnquists approach and attitude toward Fourth Amendment interpretation).
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that with bad faith he had attempted to take away what our forefathers had provided. Fortunately, I took time to reflect on the invitation, which, from the outset, encouraged prospective participants to avoid Rehnquist-bashing and to exploit the opportunity for temperate consideration and impartial analysis. Criticism was neither forbidden nor discouraged, but authors were urged not to succumb to the trap of railing against a Justice because of our differences. I am most grateful for that exhortation, because it is one of the reasons I was persuaded to participate. My initial reluctance was also rooted in a sense that the topic was neither important nor interesting enough to warrant extensive consideration. William Rehnquist was an extremist whose position at the far end of the spectrum had precluded much influence on Fourth Amendment law. There is no denying the major erosion of Warren Court precedents during Rehnquists tenure, but surely that was primarily due to more moderate Justices who shared his general inclinations, but did not harbor his excessive antipathy toward Fourth Amendment rights. Moreover, although he authored sixty-eight Fourth Amendment opinions while on the Courta little more than two per year spanning the entire thirty-three year periodI could think of very few that qualified as landmarks in the evolution of Fourth Amendment doctrine.2 Fortunately, I had incentives to resist these misleading perspectives. First, I have long believed that there are few more important topics than our guarantee against unreasonable searches and seizures.3 My specialization in criminal procedure
2 The two opinions that leapt to mind initially were Illinois v. Gates, 462 U.S. 213 (1983) and Rakas v. Illinois, 439 U.S. 128 (1978). Upon further reflection, I would add Wilson v. Layne, 526 U.S. 603 (1999), Michigan Dept of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Robinson, 414 U.S. 218 (1973). My views about what constitute landmarks, I suspect, are colored by my preference for decisions protective of civil liberties. Nonetheless, I still find a relative dearth of landmark Fourth Amendment opinions in the Rehnquist catalogue. As will become apparent, he accomplished his goals by means of many small steps in the directions he wished to go. See infra Part II.E. 3 See Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting) (declaring that the Fourth Amendment rights are not mere second-class rights, that they belong in the catalog of indispensable freedoms, that deprivations of those rights is most effective in cowing a population, crushing the spirit of the individual and
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has biased me in favor of the provision. Still, I believe there are objective reasons for according the Fourth Amendment predominant status among the civil liberties found in our Bill of Rights. First, the values and interests it preserves and protects were of abiding significance to our ancestors. Resentment of unreasonable searches and seizures by the British was a potent cause of our struggle for independence.4 In my view, our forebears considered protection against unreasonable searches and seizures central to a free society not only because privacy has intrinsic value, but also because it is instrumental for the full enjoyment of many other liberties.5 In addition, preliminary research persuaded me that my unfounded impression about Rehnquists lack of influence could be mistaken, and further reading convinced me that it was a serious misperception. This Symposium revolves around a topic of exceptional importance, because the Fourth Amendment is a critical component of our national charter and William Rehnquist playedand continues to playa major role in shaping that provisions resolution of the tension between freedom and order.6
putting terror in every heart, and that [u]ncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government). 4 See NELSON LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 58-59 (1937) (citing John Adamss belief that James Otiss objections to the colonial writs of assistance breathed into this nation the breath of life, and gave birth to the child Independence); Warden v. Hayden, 387 U.S. 294, 312 (1967) (Fortas, J., concurring) (asserting that the conduct of general searches were one of the matters over which the American Revolution was fought); Harris v. United States, 331 U.S. 145, 159 (1947) (Frankfurter, J., dissenting) (opining that the Fourth Amendment sought to guard against an abuse that more than any one single factor gave rise to American independence). 5 See James J. Tomkovicz, Beyond Secrecy for Secrecys Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province , 36 HASTINGS L.J. 645, 667-77 (1985). 6 See Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 CHI.-KENT L. REV. 191, 192-93 (2010) (stating that in light of his astonishing number of majority opinions on the Fourth Amendment in many of the most important cases during the time he served as Chief Justice, Rehnquists impact on Fourth Amendment analysisand his legacyis substantial); see also Louis D. Bilionis, Conservative Reformation, Popularization, and the Lessons of Reading Criminal Justice as Constitutional Law, 52 UCLA L. REV. 979, 991-92 (2005) (contending that no one doubts that Rehnquist was [the] most influential Justice in bringing about a conservative reformation of criminal justice and that as voice of critique, promoter of basic vision, source of energy, and maker of doctrine to reformist ends, he had no equal on the Court).
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Symposium participants were allowed to be as broad or narrow in focus as they wished. We could illuminate Rehnquists Fourth Amendment by painstaking analysis of one or two opinions or by a wider-lens effort to assess the entire corpus of the Chief Justices work. Such freedom can be both a blessing and a curse. With few external constraints, I vacillated between the two extremes, entertaining a variety of options, and unable to settle on an approach. Ultimately, I let William Rehnquist be my muse. I collected all of his opinions and embarked upon a chronological journey through each of them, having faith that inspiration would arrive along the way.7 A lightning bolt of the sort I anticipated never struck. A previously undiscerned, unique, and novel perspective on the Chief Justices relationship to the Fourth Amendment never blossomed. I concluded that only a somewhat more global approach would permit me to convey the lessons I learned. My hope is that the array of discrete insights that follow will be interesting, perhaps even enlightening, and that they will contribute to a fuller appreciation of both the Fourth Amendment and William Rehnquists immeasurable impacts. I begin with a brief overview of the Fourth Amendment and an effort to summarize the substance of Rehnquists conception of that provision. I then offer both quantitative and qualitative support for my descriptions of the Chief Justices views. The quantitative assessment uses various numbers to confirm the accuracy of my description. The qualitative assessment furnishes additional support and tells a story spanning more than three decadesa tale of the reasoning, principles, doctrine, strategies, and tactics that Justice, then Chief Justice, Rehnquist employed to implement his vision. It consists of negativesof Fourth Amendment principles Rehnquist opposed and premises he found unpersuasive. It also describes positivesthe affirmative principles and premises that guided his interpretations. A few reflections on his style and methodology are also included. Finally, I endeavor to evaluate the extent of Rehnquists influence during his time on the Court and since he departed. I also assess how he
7 I supplemented this with a review of more than thirty law review articles that had something to say about Rehnquist and the Fourth Amendment.
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would react to the Fourth Amendment decisions of the Roberts Court. I have tried to be apolitical and impartial in my descriptions and analyses, to set aside biases and disagreements with Rehnquists Fourth Amendment positions. For purposes of these discussions, I reject the notions that he engaged in a bad-faith crusade to deprive citizens of constitutional rights and that his views were disingenuous covers for constitutional distortion to serve political ends. Instead, I assume that the Chief Justices opinions reflect sincere, principled efforts to discern the true content of that pivotal guarantee.8
I. WILLIAM REHNQUISTS FOURTH AMENDMENT A. The Fourth Amendments Balance

The Fourth Amendment strikes a marvelous balance. It neither allows the government unlimited power to search and seize, nor forbids all searches and seizures. It grants a right against unreasonable searches and seizures, permitting those that are reasonable.9 It aims to guarantee the people adequate protection for privacy, property, and liberty while affording society adequate authority to combat crime, preserve order, and ensure public safety.10
8 See Andrew Jay McClurg, Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquists Decisions in Criminal Procedure Cases, 59 U. COLO. L. REV. 741, 838 (1988) (maintaining that Rehnquists views regarding the place the Bill of Rights occupies in the criminal justice system [were] no doubt deeply and honestly felt and that he strongly believe[d] in those views); see also HERMAN J. OBERMAYER, REHNQUIST: A PERSONAL PORTRAIT OF THE DISTINGUISHED CHIEF JUSTICE OF THE U.S. 215, 244 (2009) (opining that Rehnquist was not a devious man, that [h]e said what he believed, and that he was of high character and honest). 9 U.S. CONST. amend. IV. (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.). 10 See Gerald G. Ashdown, The Fourth Amendment and the Legitimate Expectation of Privacy, 34 VAND. L. REV. 1289, 1289 (1981) (observing that [j]udicial supervision of police practices has always necessitated a rather delicate balance, that the promotion of crime control values may require the compromise[] of privacy and individual rights, and that [t]he dilemma . . . created is one of providing the
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Various facets of the provision play roles in resolving the tension between these competing interests. First, the terms of the provision explicitly constrain only searches and seizures.11 Other sorts of government activities are not regulated because they do not threaten the interests the Fourth Amendment is designed to safeguard. The authorities are entirely freeas far as the Fourth Amendment is concernedto promote the public interest by conduct that qualifies as neither a search nor a seizure. Consequently, ascertaining the distinctions between searches and non-searches and between seizures and non-seizures is integral to defining the constitutional balance. The more pervasive component of the Fourth Amendment balance is the explicit dichotomy between reasonable and unreasonable searches and seizures. Even though they deprive us of privacy, property, or liberty, the former are allowed to enable effective law enforcement. Even though they may impede efforts to protect the public, the latter are forbidden to preserve privacy, property, and liberty. Prescribing the content and meaning of the term unreasonablespecifying when searches and seizures are reasonable and when they are notis integral to implementing the delicate Fourth Amendment balance.12 Finally, the Fourth Amendment commands that the right of the people to be secure against unreasonable searches and seizures shall not be violated, but does not specify a consequence for violations.13 Its terms do not address whether the government must repair constitutional damage, whether officials must compensate injured victims, or, most significantly, whether prosecutors may introduce unconstitutionally obtained evidence to meet their heavy burden of proof in criminal cases. The admissibility of illegally acquired evidencewhether suppression is constitutionally required and, if so, how extensive the bar to probative evidence isis another critical aspect of the
maximum possible accommodation to one interest without unduly infringing upon the other). 11 U.S. CONST. amend. IV. 12 A limited amount of the substance of the general right to be secure . . . against unreasonable searches and seizures is specified in the second clause of the Fourth Amendment, which prescribes the requisites for a valid warrant to search or seize. See U.S. CONST. amend. IV. 13 Id.
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constitutional effort to reconcile law enforcement efficacy with freedom. The sanction question is difficult, controversial, and inseparable from the effort to identify the appropriate constitutional balance.
B. Rehnquists Perspectives on the Fourth Amendment Balance: A Broad Brush Portrait

William Rehnquist understood that the Fourth Amendment was an effort to preserve privacy, property, and liberty while affording law enforcement sufficient opportunities to control crime, preserve order, and protect public safety.14 His conception of the constitutional balance tilted decidedly more in favor of the governments efforts to enforce the laws than the one that had evolved primarily, although not at all exclusively, during the decade preceding his arrival.15 Moreover, his conception of the Fourth Amendment was much less restrictive of law enforcement and correspondingly less generous with privacy, property, and liberty than that of any Justice with whom he served.16 In his view, the Court had mistakenly interpreted the Fourth Amendment in an array of ways that distorted the accommodation intended by the Framers. The prevailing precedents favored freedom and restricted the authorities efforts to preserve order
14 According to Justice Rehnquist, in construing the Fourth Amendment, the Courts task [was] to hold the balance true. Illinois v. Gates, 462 U.S. 213, 241 (1983). Rehnquist described the constitutional balance as one involving competing public interests. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 67 (1993) (Rehnquist, C.J., dissenting) (The Fourth Amendment strikes a balance between the peoples security in their persons, houses, papers, and effects and the public interest in effecting searches and seizures for law enforcement purposes.). 15 See Thomas Y. Davies, The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment Search and Seizure Doctrine , 100 J. CRIM. L. & CRIMINOLOGY 933, 993 (2010) (noting that Nixon sought out Rehnquist because of his opposition to the Warren Courts criminal procedure rulings); JOHN W. DEAN, THE REHNQUIST CHOICE 268-69 (2001) (observing that before his appointment Rehnquist had argued that the Supreme Courts criminal procedure rulings had hindered the enforcement of the criminal law). 16 See Mark C. Rahdert, William Rehnquists Judicial Craft: A Case Study , 60 TEMP. L. Q. 841, 847 (1987) (declaring that Rehnquists position on the fourth amendment no doubt marked one end of a continuum of views on the Court, although other Justices shared that position, at least in part).
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considerably more than was justified.17 As will be seen, Rehnquist sought to right18 the balance by implementing narrow conceptions of the terms search and seizure. He worked to recalibrate the scales by eliminating or weakening onerous norms of reasonableness that had been promulgated and by replacing them with less demanding, more malleable criteria. Finally, believing that the exclusion sanction was not a part of the Framers effort to reconcile freedom with order, he advocated its abolition and strove at every turn to minimize its negative impacts on the governments abilities to successfully prosecute criminals.19 Earlier, I suggested that Fourth Amendment freedoms are an essential substrate for the enjoyment of other civil liberties. William Rehnquist believed that an orderly societymaintained through efficient and effective law enforcementwas vital to the preservation of liberties. His vision of the Fourth Amendment balance as less restrictive of official authority grew out of a belief that control over the forces of disorder is a critical predicate for the preservation of a genuinely free society.20
17 See Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting) (charging that the Court had failed to appreciate the i mpact of its decisions, not mandated by the Fourth Amendment, on law enforcement and had indulged the casual assumption that police are not substantially frustrated in their efforts to apprehend criminals or gather evidence . . . by the judicially crea ted preference for a warrant); see also Craig M. Bradley, Criminal Procedure in the Rehnquist Court: Has the Rehnquisition Begun?, 62 IND. L. J. 273, 291 (1987) (observing that Rehnquists fourth amendment jurisprudence [was] informed by the view that th e Warren Court went too far in [one] direction, according the criminal defendant too many rights and allowing the crime problem to threaten the civil liberty of the people). 18 The double entendre is quite deliberate. I mean to suggest that Rehnquist was determined to correct the erroneous balancing of the constitutional scales by placing more weight on the governments side, a position consistent with the conservative end of the political spectrum. 19 See SUE DAVIS, JUSTICE REHNQUIST AND THE CONSTITUTION 44-45 (1989) (contending that in general, Rehnquist aimed to strengthen the peace forces against the criminal forces and to swing the pendulum away from the protection of the rights of the accused and toward the power of government). 20 See Bradley, Criminal Procedure in the Rehnquist Court , supra note 17, at 292 (quoting a Rehnquist speech in which he observed that the claim of fair and efficient administration of the law may be idealized in terms of the sine qua non of a selfgoverning society and asserted that a society that is unable to enforce the laws it has enacted is not one in which civil liberties and privacy are secure).
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C. Painting by the Numbers: A Quantitative Sketch of William Rehnquists Votes and Opinions in Fourth Amendment Cases
Before exploring the substance of Rehnquists Fourth Amendment views in detailthat is, the principles, reasoning, premises, and doctrines that informed his efforts to implement a more law enforcement-friendly regimea quantitative sketch of his thirty-three-year record of opinions and votes seems fitting. Viewed from various angles, this numerical account resoundingly confirms the perspective just described.21 William Rehnquist assumed his place on the Supreme Court on January 7, 1972, and served until his death on September 3, 2005, a period just a few days short of thirty-three years and eight months.22 He was an Associate Justice from his appointment until September 26, 1986, when he assumed the mantle of Chief Justice.23 He served in that post for nearly nineteen years.24 Only six Justices have served on the Court for longer spans, and only three have been Chief longer than he was.25 The Supreme Court resolved 207 cases involving Fourth Amendment issues during the Rehnquist years, and he cast votes in 205.26 Rehnquist authored sixty-eight majority, concurring, and dissenting opinions in cases involving Fourth Amendment issues.27 His first Fourth
21 To support my numerical claims, I have created a table of the decisions as an Appendix to this article. James J. Tomkovicz, Fourth Amendment Decisions During the Rehnquist Years (1972-2005), 82 MISS. L.J. 443 (2013) (hereinafter cited as Appendix). 22 See Madhavi M. McCall & Michael A. McCall, Chief Justice William Rehnquist: His Law-and-Order Legacy and Impact on Criminal Justice, 39 AKRON L. REV. 323, 372 n.21 (2006); see also William H. Rehnquist, The Oyez Project at IIT Chicago-Kent College of Law, http://oyez.org/justices/william_h_rehnquist (last visited January 18, 2013). 23 William Hubb Rehnquist (1924-2005), Cornell Information Institute: Supreme Court Collection, http://www.law.cornell.edu/supct/justices/rehnquist.bio.html (last visited January 18, 2013). 24 McCall & McCall, supra note 22, at 323. 25 Id. at 332. 26 The Appendix lists all of the Courts Fourth Amendment decisions during Rehnquists tenure. I believe the list compiled is comprehensive. If I have overlooked any Fourth Amendment decisions during the Rehnquist years, I apologize for the oversight. The Court averaged more than six Fourth Amendment decisions per year between 1972 and 2005. Rehnquist did not participate in Devenpeck v. Alford, 543 U.S. 146 (2004) or Illinois v. Caballes, 543 U.S. 405 (2005). 27 This means that Rehnquist averaged just over two Fourth Amendment opinions per year and one opinion for every three Fourth Amendment cases before the Court. I am indebted to Professor Thomas Clancy, organizer of this Symposium, for assembling
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Amendment opinion was in Adams v. Williams,28 a case decided on June 12, 1972, a little more than five months after Rehnquists arrival. His final Fourth Amendment opinion was in Muehler v. Mena,29 handed down on March 22, 2005, nearly six months before his departure. Of the 205 Fourth Amendment cases in which Rehnquist cast an identifiable vote, he favored the pro-law enforcement position 164 times, he endorsed a pro-Fourth Amendment stance 28 times, he supported a split position (partly pro-law enforcement and partly pro-Fourth Amendment rights) on four occasions, and, in my view, nine of his votes were neutral.30 Excluding the neutral positions and dividing up the split votes, he favored law enforcement in 166 of 196 cases, roughly 85 percent of the time, and agreed that the Fourth Amendment claim had merit in 30 cases, approximately 15 percent of the time. During the Rehnquist years, I identify 190 Supreme Court decisions as clearly favoring or disfavoring Fourth Amendment protection.31 Majorities ruled in favor of Fourth Amendment protection 55 times, or nearly 29 percent of the time. Rehnquist disagreed with the majority in 27 of those cases and agreed with
and organizing a list of Rehnquists Fourth Amendment opinions. See Thomas K. Clancy, Foreword: William Rehnquists Fourth Amendment: 2012 Fourth Amendment Symposium, 82 MISS. L.J. i (2013). The Appendix includes a column noting whether Rehnquist authored an opinion and the type of opinion he authored. See Appendix, supra note 21. 28 407 U.S. 143 (1972). Adams was a majority opinion in which the Court rejected a Fourth Amendment claim by a 6-3 vote. Id. It was just the second Fourth Amendment case in which he voted and the only Fourth Amendment opinion Rehnquist authored during his initial year. Tomkovicz, supra note 21, at 444. 29 544 U.S. 93 (2005). In Mena, the vote against the Fourth Amendment claims was unanimous, but Rehnquists majority opinion was joined by a bare majority of five Justices, and one of the five, Justice Kennedy, qualified his position by expressing concern about the need to ensure that a police practice at issuehandcuffing detainees in homes during searchesdid not become excessive. See id. at 102 (Kennedy, J., concurring). Mena was the sole Rehnquist Fourth Amendment opinion during his final year and the last Fourth Amendment case in which he participated. Tomkovicz, supra note 21, at 486. 30 One of the columns in the table includes classifications of Rehnquists positions in the cases. See Appendix, supra note 21. 31 Of the 205 cases in which Rehnquist voted, I classify ten of the Courts outcomes as neutral Fourth Amendment rulings and five of the Justices rulings as split decisions.
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the majority in 28a roughly 50-50 split.32 The Supreme Court rejected Fourth Amendment protection on 135 occasions or approximately 71 percent of the time. Rehnquist agreed with the majority in every one of those decisions. Not once did he take a position more solicitous of constitutional rights than the Court majority. Thirty-eight of the Fourth Amendment cases were decided by a single vote. Thirty of those bare majority rulings rejected Fourth Amendment claims, and Rehnquist was in the majority, providing a critical vote in every one of them.33 The Court sustained Fourth Amendment claims in seven cases that were decided by 5-4 votes,34 and not once was William Rehnquist one of the five Justices in the majority.35 In fact, in over three decades, William Rehnquist had an almost flawless record of not being more indulgent of Fourth Amendment claims than any of his colleagues. Of the 205 Fourth Amendment cases he was involved in deciding during his tenure, Bond v. United States36 was the sole blemish, the lone outlier in which Rehnquist took a more civil libertarian position than another member of the Court.37
32 All but one of the twenty-eight decisions favoring Fourth Amendment protection were unanimous. The sole exception was Bond v. United States. See infra note 37 and accompanying text. Thus, when Rehnquist took a stance against law enforcement, it was virtually always in a case where the merits tipped decidedly in favor of Fourth Amendment shelter. Of the twenty-seven pro-Fourth Amendment decisions with which Rehnquist disagreed, he was alone in dissent only four times. 33 All but one of these cases was decided by a 5-4 vote. In Murray v. United States, 487 U.S. 533 (1988), two Justices did not participate and the vote was 4-3. 34 I count United States v. James Daniel Good Real Property, a 5-4 decision in which Rehnquist authored a dissent, as neutral regarding the Fourth Amendment. 510 U.S. 43 (1993). 35 See McCall & McCall, supra note 22, at 335-36, 343 (asserting that in criminal justice rulings in general and Fourth Amendment decisions in particular, Rehnquist was the only conservative Justice not to provide the critical vote in a bare majority decision favoring civil liberties). 36 529 U.S. 334 (2000). Moreover, it took Rehnquist nearly three decades to break his streak. Bond was decided during his twenty-ninth year on the Court. Chief Justice Rehnquist authored the majority opinion upholding the Fourth Amendment claim. Two Justices, Breyer and Scalia, would have rejected the claim. See id. at 339 (Breyer, J., dissenting). 37 I am most grateful to another participant in this Symposium for first bringing this fact to my attention a number of years ago. See Craig M. Bradley, The Fourth Amendment: Be Reasonable, in THE REHNQUIST LEGACY 86-87 (Craig M. Bradley ed., 2006). There are at least a couple of decisions in which Rehnquists vote was not more pro-Fourth Amendment than another Justice, but his opinion evinces a more favorable
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Of the sixty-eight cases in which Rehnquist authored opinions, forty-eight were majority opinions, six were concurring opinions, and fourteen were dissenting opinions. Thirty-nine of the majority opinions were pro-law enforcement, rejecting Fourth Amendment protection, four of his majority opinions favored Fourth Amendment claims, and five were neutral. Four of the concurring opinions joined majorities that favored Fourth Amendment claims, while two agreed with decisions favorable to law enforcement. Thirteen of his fourteen dissents expressed antiFourth Amendment positions and one was neutral. Overall, excluding the six neutral decisions, Rehnquist voted against Fourth Amendment claims in fifty-four of sixty-two cases, eightyseven percent of the time, while he voted in favor of constitutional shelter in only eight of them. His votes favoring the pro-law enforcement position were in the majority forty-one times and in the minority thirteen times. All eight of his votes in favor of Fourth Amendment claims were majority positions.38 The numbers paint a bold and vivid picture of a Justice who typically believed that the Fourth Amendment balance tipped toward law enforcement in cases meriting Supreme Court scrutiny. Moreover, the numbers understate the pro-law enforcement tilt of Rehnquists positions on Fourth Amendment issues. A closer look at the eight Rehnquist opinions that are ostensibly pro-Fourth Amendment reveals that he was even less generous in his interpretations of Fourth Amendment protection than the numbers indicate.
inclination toward the rights guaranteed by that provision than one or more of his colleagues. See Minnesota v. Carter, 525 U.S. 83 (1998) (endorsing a position regarding the capacity of guests in homes to claim exclusion that is more generous than the concurring position taken by Justices Scalia and Thomas); Donovan v. Dewey, 452 U.S. 594, 608-09 (1981) (Rehnquist, J., concurring in the judgment) (disagreeing with the majority reasoning supporting a warrantless search because, in his view, t he Courts precedents did not justify the suspension of warrant protection for business premises based on pervasive regulation alone). In addition, in Groh v. Ramirez, 540 U.S. 551 (2004), Chief Justice Rehnquist did not write an opinion but voted with the dissenters solely on qualified immunity grounds. See id. at 566 (Kennedy, J., dissenting); id. at 578 (Thomas, J., dissenting). Unlike Justices Thomas and Scalia, Rehnquist did not disagree with the Courts conclusion that the Fourth Amendment had been violated. See id. at 571-77 (Thomas, J., dissenting). 38 In seven of the eight cases, the Court was unanimously in favor of the Fourth Amendment claim. Bond, of course, was the one decision that was not unanimous. 529 U.S. 334. See supra note 37 and accompanying text.
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William Rehnquist had been an Associate Justice for three years when he authored his first opinion supportive of a Fourth Amendment claim. In United States v. Brignoni-Ponce,39 a unanimous Court held that roving border patrol stops could not be based on apparent ancestry alone, but required a reasonable suspicion of criminal activity. While Rehnquist joined this opinion, the motivation for his concurrence was to highlight the narrowness of the Courts ruling. He expressed his approval of random stops of motorists using highways in order to determine whether they . . . met the qualifications . . . for such use and pointed out that the Courts decision did not render agricultural inspections and highway roadblocks to apprehend known fugitives . . . in any way constitutionally suspect.40 Consequently, while he voted in favor of the constitutional claim, his opinion was not supportive of Fourth Amendment protection. That same day, Justice Rehnquist also authored a concurrence in United States v. Ortiz,41 another unanimous opinion holding that nonconsensual searches of vehicles at fixed checkpoints at locations removed from the border required probable cause.42 In fact, Rehnquist disagreed with the Courts protective interpretation of the Fourth Amendment, describing the majoritys holding as an extension of the unsound rule announced in Almeida-Sanchez.43 He decided, nonetheless, to join the Courts opinion only because a majority . . . still adhere[d] to that unsound rule and he agreed that there was inadequate reason to treat fixed checkpoints differently from the roving patrol searches condemned in Almeida-Sanchez.44 Moreover, he stress[ed] the limits of the ruling in Ortiz, pointing out that only full searches were at issue and asserting that stops at checkpoints to inquir[e] about citizenship were modest intrusion[s] that effectively serve the important national interest in controlling illegal
422 U.S. 873, 885-87 (1975). Id. at 887-88 (Rehnquist, J., concurring). 41 422 U.S. 891 (1975). 42 Id. at 896-97. 43 Id. at 898 (Rehnquist, J., concurring). Two years before Ortiz, the Justices ruled that searches of vehicles by roving patrols had to be based on probable cause. See Almeida-Sanchez v. United States, 413 U.S. 266 (1973). In that case, Rehnquist joined the dissent. See id. at 285 (White, J., dissenting). 44 Ortiz, 422 U.S. at 898 (Rehnquist, J., concurring).
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entry.45 Once again, despite his vote to sustain a Fourth Amendment claim, Justice Rehnquists opinion was anything but favorable toward constitutional shelter. Three years later, Rehnquist again supported a unanimous decision in favor of a Fourth Amendment claim. In Mincey v. Arizona, the Justices refused to adopt a murder scene exception to the search warrant rule and found a four-day-long warrantless search unreasonable.46 After confirming his agreement with his colleagues, Rehnquist emphasize[d] that the majority opinion had not decided what, if any, evidence had been seized as a result of the illegal search47 and highlighted the grounds on which the state courts might find the evidence at stake admissible.48 In addition, he floated a pro-law enforcement trial balloon, sketching a doctrine under which valid initial home entries by officers in response to a shooting might justify subsequent warrantless entries pursuant to exigencies that in tamer circumstances might not permit a search.49 In other words, Justice Rehnquist used his concurrence to instruct a state court how to avoid suppression and to propose an expanded variety of exigency exception to the warrant rule. Again, he lined up on the Fourth Amendments side, but his opinion was designed to detract from that guarantees protection. Rehnquist did not author a majority opinion sustaining a Fourth Amendment claim until nearly two decades after his appointment, four years after his elevation to Chief Justice. In Florida v. Wells,50 a unanimous Court held that a warrantless search did not satisfy the standardized criteria or established routine requirement51 for the inventory search exception to the search warrant rule because the police had no policy whatever with respect to the opening of closed containers in vehicles.52
Id. at 898-99 (Rehnquist, J., concurring). 437 U.S. 385, 395 (1978). 47 Id. at 406 (Rehnquist, J., concurring in part and dissenting in part). Justice Rehnquist was also the sole dissenter from the Courts further ho lding that the defendants confession was involuntary and inadmissible as a matter of due process . See id. at 407-10 (Rehnquist, J., concurring in part and dissenting in part). 48 Id. at 406. 49 Id. at 406-07. 50 495 U.S. 1 (1990). 51 Id. at 4. 52 Id. at 4-5.
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Most of Rehnquists terse majority opinion, however, was devoted to explaining that the Florida Supreme Court had erred by relying on the principle that inventory search policies must mandate that either all or none of the containers in a vehicle be searched.53 According to the Chief Justice, the Fourth Amendment was not so demanding. Although it forbids uncanalized discretion of the sort allowed by the Florida Highway Patrol, it permits officers to exercise some judgment in deciding which containers to inventory.54 The Florida Supreme Courts contrary conclusion was hardly a lark. Just three years earlier, five Justices had indicated that warrantless inventories were permissible only when departments eliminated all discretion regarding the scope of the search officers could conduct.55 Consequently, while Rehnquist favored the Fourth Amendment claimant in Wells and authored the first of his four majority opinions sustaining unreasonable search contentions, he managed to attract slim majority support for an expansion of the inventory search exception to the search warrant rule that loosened the constraints on officers explorations of the contents of private repositories discovered in impounded vehicles.56 Despite the announcement that totally unconstrained
Id. at 4. Id. at 4. 55 See Colorado v. Bertine, 479 U.S. 367, 376 (1990) (Blackmun, J., concurring); id. at 377 (Marshall, J., dissenting). 56 The standard announced in Wells regarding the scope of permissible discretion is so ambiguous that it is difficult to tell the breadth of the judgment that officers may exercise consistent with the Constitution. Rehnquist declared that officers may have the latitude to decide whether to open a container in light of the nature of the search and characteristics of the container. Wells, 495 U.S. at 4. He sanctioned policies allowing officers to open containers whose contents officers determine they are unable to ascertain from examining . . . exteriors and declared that [t]he allowance of the exercise of judgment based on concerns related to the purposes of an inventory search was constitutional. Id. These amorphous descriptions seem intended to endorse most inventory policies that do not authorize entirely unfettered discretion. Although the vote to strike down the search in Wells was unanimous, only five Justices joined Rehnquists opinion. Because the Chief Justice had exploited the opportunity to write his first pro-Fourth Amendment majority opinion to expand law enforcement authority and erode privacy protection, four Justices concurred in the judgment, expressing disapproval of the announcement that officers could exercise discretion in searching vehicle contents. See id at 9-10 (Brennan, J., concurring in the judgment); id at 11 (Blackmun, J., concurring in the judgment); id. at 12 (Stevens, J., concurring in the judgment).
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inventory discretion is impermissible, Wells is anything but an unqualifiedly pro-Fourth Amendment opinion. Thus, as of 1990, William Rehnquist had still not written an opinion that was devoid of efforts to enhance law enforcement authority by diminishing the protection against unreasonable searches and seizures. The Chief Justices 1996 opinion in Ornelas v. United States57 is difficult to classify. For an eight-Justice majority, he concluded that appellate review of probable cause and reasonable suspicion determinations must be de novo, not deferential.58 Rehnquist voted for the Fourth Amendment claim in Ornelas. The majority vacated an appellate ruling that had been inappropriately deferential in affirming a trial judges probable cause and reasonable suspicion findings.59 Under de novo scrutiny, the accused in that case had a better chance of prevailing on appeal. Nonetheless, it is quite uncertain whether the substance of Rehnquists opinion and ruling are generally protective of Fourth Amendment rights. In cases where trial judges find no probable cause or reasonable suspicion, de novo review improves the governments odds of ultimate success. Although Rehnquist supported the defendants Fourth Amendment position, his opinion addressed standards of appellate review, not the breadth of constitutional protection against unreasonable searches and seizures.60 Thus, at best, Ornelas is neutral regarding Fourth Amendment rights.
Rehnquist had already written an opinion recognizing that the impoundment decision that is a predicate for inventory search authority could also be discretionary so long as that discretion is exercised according to standard criteria, and he sustained a policy according officers generous authority to choose whether to impound vehicles. See Bertine, 479 U.S. at 375-76. 57 517 U.S. 690 (1996). 58 Id. at 691, 698-99. 59 Id. at 700. 60 Between Wells and Ornelas, the Chief authored an opinion in Minnesota v. Dickerson, 508 U.S. 366, 383 (1993) (Rehnquist, J., concurring in part and dissenting in part). The majority sustained the Minnesota Supreme Courts conclusion that an officer exceeded the bounds of a Terry frisk by manually manipulating the contents of a suspects pocket. Id. at 379. The legal content of Rehnquists opinion was unquestionably pro-Fourth Amendment. He agreed that frisk authority must be confined to what is necessary to look for weapons and that Terry does not allow evidentiary searches on less than probable cause. Id. at 383. He made no effort to expand officers authority to search suspects for contraband. Nonetheless, he disagreed
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Decisions in 1998, 1999, and 2000 produced Rehnquists three most capacious Fourth Amendment opinions. Knowles v. Iowa61 resolved a question he had left unsettled in United States v. Robinson.62 Chief Justice Rehnquist wrote the opinion for a unanimous Court, concluding that an officer lacks authority to search a motorist merely cited for speeding even though the officer could have arrested the motorist.63 A custodial arrest was necessary to trigger the search incident to arrest exception.64 In Knowles, Rehnquist not only cast his vote in favor of an unreasonable search claim, his opinion neither shrunk constitutional protection nor expanded law enforcement search authority. It was his most pro-Fourth Amendment opinion to-date. Nevertheless, he crafted the rejection of authority to search incident to traffic citations as narrowly as possible. The Chief Justice first pointed out that the validity of the Iowa statute authorizing searches incident to citations was not at issue, and that the sole question was the constitutionality of the search at issue.65 In addition, his reasoningthat the threat to officer safety was less serious in citation situations and that there was no possibility of finding evidence of excessive speed on the arrestee or in his vehicle66left room for argument that a warrantless, causeless search incident to a citation might be permissible if the citation was for an offense which might involve evidence. Moreover, Rehnquist opined that officers could ensure their safety
with the majoritys disposition of Dickersons claim. Id. He did not believe that the Minnesota courts had actually determined whether the officer had gained probable cause while conducting a proper Terry frisk. Id. Consequently, he advocated vacating the Minnesota Supreme Courts ruling in the defendants favor and remanding the case for a clear determination of that issue, a determination that could have sustained the constitutionality of the search that exceeded Terry frisk bounds. Id. Rehnquists position was protective of Fourth Amendment rights, but his opinion was motivated by a desire to uphold the constitutionality of the officers search and the admissibility of the contraband discovered. Id. 61 525 U.S. 113 (1998). 62 414 U.S. 218, 236 n.6 (1973). Rehnquist wrote the majority opinion in Robinson during his second year on the Court. The opinion was a very generous interpretation of law enforcement authority to conduct thorough warrantless, causeless searches of persons arrested for relatively minor offenses. 63 Knowles, 525 U.S. at 118-119. 64 Id. at 116-17, 119. 65 Id. at 116. 66 Id. at 118.
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by ordering all occupants of a vehicle to get out and patting them down based on reasonable suspicion that they may be armed and dangerous.67 In fact, the Court had not yet addressed officers authority to search passengers not suspected of any involvement in criminal activity.68 Finally, Rehnquist responded to the claim that authority was needed to prevent a suspect from destroying evidence related to his identity by instructing officers that they might arrest a driver who does not furnish adequate identification, then conduct a full search incident to that arrest.69 In sum, in Knowles, the Chief Justice made efforts to ensure that law enforcement officers had ample authority to protect themselves, and, perhaps, happen upon some evidence along the way.70 Wilson v. Layne71 is my nominee for the most generous Fourth Amendment opinion authored by William Rehnquist. For a unanimous Court, he wrote an opinion holding that officers acted unreasonably when they brought media representatives into a home they were authorized to search.72 His reasoning placed heavy emphasis on the special constitutional protection afforded home privacy.73 Moreover, he pointedly rejected each of the governments putatively legitimate law enforcement purposes as inadequate to justify an invasion of the important right to home privacy which is guaranteed by th[e Fourth] Amendments text.74 Layne bars the police from bringing gratuitous others into dwellings; it allows officers to bring only those third parties whose presence directly aids the performance of their law enforcement functions.75
Id. Years later, after Rehnquists departure, the Court would approve the authority to frisk passengers for weapons in the situations contemplated by the Chief Justice. See Arizona v. Johnson, 555 U.S. 323 (2009). 69 Knowles, 525 U.S. at 118. 70 It is conceivable, though by no means certain, that Rehnquist voted against his natural inclination in Knowles in order to write an opinion that was as minimally restrictive of law enforcement as necessary. 71 526 U.S. 603 (1999). 72 Id. at 605, 614. 73 Id. at 612-13. 74 Id. at 605, 614. 75 Id. at 611, 614.
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It is noteworthy that Rehnquist shielded the officers in Layne from civil liability, concluding that they were entitled to qualified immunity because the law was not clear at the time of their unconstitutional actions.76 Further, he made it clear that evidence found by officers during a home search rendered unconstitutional by unnecessary third parties would not be suppressed from a criminal trial unless the third parties contributed to the discovery of the evidence.77 He even intimated that evidence acquired only because the third parties were improperly present might not be subject to suppression.78 Layne was a logical vehicle for the Chief Justices most proFourth Amendment opinion. Forbidding privacy invasions by gratuitous third parties did not impede officers abilities to conduct legitimate home searches. Moreover, if officers transgressed the Layne restrictionand there was surely little risk they would accidentally do sothere was virtually no chance that it would interfere with the governments ability to secure a conviction. The most serious consequence would be civil liability and the clarity of the ruling made it easy for officers to avoid that consequence. The final opinion Rehnquist wrote in favor of a Fourth Amendment claim and restrictive of law enforcement authority has already been mentioned. In Bond v. United States,79 he authored a majority opinion holding unconstitutional an officers physical manipulation of a soft-sided bag in an overhead compartment on a bus. The case turned on whether the officers actions constituted a search at all. The Chief Justice concluded that the officers conduct had triggered Fourth Amendment regulation by violating a reasonable expectation of privacy.80 In
76 Id. at 605-06, 618. The Justices affirmed the lower courts recognition of qualified immunity. Consequently, Rehnquist ultimately voted against the Fourth Amendment claimants in Laynealthough not on the merits. In this sense, Layne was a mirror image of Ornelas. 77 Id. at 614 n.2 (asserting that when officers are lawfully present it is only the presence of the media and not the presence of the police that violates the Fourth Amendment, and indicating, therefore, that suppression would be required, at most, for evidence discovered or developed by the media representatives). 78 Id. (refraining from deciding whether the exclusionary rule would apply to any evidence discovered or developed by the media representatives). 79 529 U.S. 334 (2000). 80 Id. at 338-39.
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response to the governments claim that by exposing his bag to the public, the defendant had lost a reasonable expectation of privacy in the bag,81 Rehnquist asserted that a bus passenger expects the public to handle a bag placed in an overhead compartment but does not expect that other passengers or bus employees will . . . feel the bag in an exploratory manner, as the agent did in Bond.82 The upshot is that if officers manipulate a bag no more than one can expect of the public, there is no cognizable privacy invasion. They are constrained by the Fourth Amendment reasonableness demand only if they exceed the public intrusions that can be anticipated. Rehnquists positions in Bond were unarguably protective of Fourth Amendment privacy interests in personal belongings. He restrained officers investigative authority in an opinion that contains nothing overtly promotive of law enforcement interests. The Chief Justice might not have considered the restriction imposed to be a severe impediment to effective investigations. Officers are unlikely to detect much contraband or evidence through tactile contact with soft-sided bags. Moreover, they remain free to handle bags in a non-exploratory manner without any objective justifications. In addition, it seems entirely possible that Rehnquists vote in favor of the defendant might have been strategic. As Chief Justice and a member of the majority, he could claim the opinion as his own and could minimize its interference with law enforcement authority.83
Id. at 337. Id. at 338-39. 83 Justices Breyer and Scalia would have ruled that physical manipulation was never a search. See id. at 339 (Breyer, J., dissenting). If Chief Justice Rehnquist had sided with the dissenters, as very well might have been his inclination, Justice Stevens would have been entitled to write or assign the majority opinion. The opinion could have imposed tighter restrictions on officers authority to handle belongings. There are powerful reasons to believe that the same year as Bond Rehnquist cast his vote against the conclusion he preferred in another case with much greater law enforcement significance. Dickerson v. United States, 530 U.S. 428 (2000), involved a direct challenge to the legitimacy of the Miranda doctrine. Id. at 431-32. Rehnquist, who had made no secret of his hostility toward Miranda, voted to sustain the landmark ruling, then drafted an artful opinion that accorded the Miranda doctrine no greater force than was necessary and, most important, preserved the prophylactic rationale that had been the basis for its dramatic erosion. Id. at 442-44. Had he not cast his lot with Mirandas proponents, Justice Stevens, or his designee, might have breathed new life into the tenuous icon.
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My trek through the Rehnquist Fourth Amendment catalogue produced not a single surprise. Every vote in favor of a Fourth Amendment claim and every opinion written in one of the cases where he cast such a vote is easily reconciled with his conservative conception of the nature of that guarantees constraints upon law enforcement. By my count, eight of his sixtyeight opinions were in cases where his position favored Fourth Amendment protection. A number of those opinions, however, evinced his signature pro-law enforcement bent. In some, he expanded or sought to expand search and seizure powers. In most that involved no efforts to increase investigative authority, he grabbed the reins and penned opinions that avoided severe damage to officers crime-fighting abilities. Rehnquists voting pattern in the 205 Fourth Amendment disputes in which he participated and in the sixty-eight in which he authored opinions provide overwhelming evidence of his disinclination to expand privacy, property, or liberty protection at the expense of law enforcement authority. Close examination of his opinions in the cases involving stances favoring constitutional rights serves only to confirm the accuracy of the portrait painted by the numbers.84
D. William Rehnquists Fourth Amendment Premises: A Qualitative Portrait

This part examines the content of Rehnquists Fourth Amendment jurisprudencethe principles, premises, reasoning, and doctrinal standards he employed to express and implement his understanding of the Framers search and seizure balance. As noted earlier,85 three main elements of the Fourth Amendments resolution of the tension between liberty and order are the identification of conduct it regulates, the definition of the term unreasonable, and the prescription of consequences for
84 A temporal perspective also yields an interesting picture. If United States v. Brignoni-Ponce, 422 U.S. 873 (1975), United States v. Ortiz, 422 U.S. 891 (1975), and Mincey v. Arizona, 437 U.S. 385 (1978)the opinions with the palpable purpose of restricting the impact of a majority opinions interference with law enforcementare excluded, the remaining opinions appeared between 1990 and 2000. It is no stretch to contend that William Rehnquist authored no genuinely pro-Fourth Amendment opinions during the first seventeen and the last five years he sat on the Court. 85 See supra Part II.A.
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violations. More specifically, the constitutional balance involves defining what constitutes a search and what amounts to a seizure, specifying what renders a search or a seizure unreasonable, and deciding whether and when relevant, probative evidence must be excluded from trials. The Warren Court revolutionized the definition of searches in Katz v. United States,86 the landmark expansion of Fourth Amendment scope. In addition, that Court endorsed and adhered to basic norms of reasonablenessthe general demands for probable cause and a warrant.87 Finally, during the 1960s, the Justices presumed that illegally obtained evidence would be suppressed; its admission was exceptional.88
1. The Negatives: Rehnquists Hostility Toward the Governing Norms

William Rehnquist sought to correct the imbalances he perceived in prior interpretations of the Fourth Amendment by challenging the validity of some prevailing norms and by construing others narrowly. He sought to tear down some parts of the constitutional edifice and to remodel others.
a. Rehnquists Approach to the Search and Seizure Thresholds: Shrinking the Fourth Amendments Purview
The Chief Justices contributions to defining what constitutes a search or seizure were relatively modest. He authored only two opinions addressing the search threshold.89 In United States v.
389 U.S. 347 (1967). See Wong Sun v. United States, 371 U.S. 471, 478-80 (1963) (affirming a probable cause norm for warrantless searches and seizures) and Katz, 389 U.S. at 35657 (explaining the search warrant demand). 88 When the Warren era ended, the only two exceptions to the exclusionary rule were the independent source doctrine, which had roots in a 1920 opinion, see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), and the attenuation exception, which was traceable to a 1939 opinion. See Nardone v. United States, 308 U.S. 338, 341 (1939). In addition, in 1954, the pre-Warren Court identified very limited circumstances in which the government could use illegally-acquired evidence to impeach a defendants trial testimony. See Walder v. United States, 347 U.S. 62, 65 (1954). 89 Rehnquist did write four other opinions addressing whether a search had occurred in cases where the threshold question was not central. All four were hostile to Fourth Amendment coverage. See Texas v. Brown, 460 U.S. 730, 740 (1983) (asserting that use of a flashlight to illuminate the interior of a vehicle simply does not constitute
86 87
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Knotts,90 his majority opinion denied Fourth Amendment protection against technology-aided surveillance, while in Bond v. United States,91 his majority opinion affirmed constitutional regulation of exploratory manual manipulation. Rehnquist did not oppose the Katz doctrines reasonable expectation of privacy criterion for determining whether a search has occurred.92 In fact, he found it a quite accommodating vehicle for ensuring ample law enforcement authority. Despite the even split in the outcomes of Rehnquists two majority threshold opinions, it is clear that he held a narrow understanding of the search category. In Knotts, he exploited the malleability and ambiguity of the Katz doctrine to deny constitutional privacy interests in publicly exposed movements.93 The result was to free officials of Fourth Amendment constraints when they used a technological device to gain information that, as a practical matter, they might well have been unable to acquire by relying on ordinary human capabilities.94 Moreover, in other
a search); Donovan v. Dewey, 452 U.S. 594, 608-09 (1981) (Rehnquist, J., concurring in the judgment) (opining that the Fourth Amendment did not govern the entry of a stone quarry because it was largely visible to the naked eye without entering the property); Robbins v. California, 453 U.S. 420, 442 (1981) (Rehnquist, J., dissenting) (suggesting that there was no reasonable expectation of privacy in the contents of . . . garbage bags because their contents . . . could be inferred from their outward appearance); United States v. Santana, 427 U.S. 38 (1976) (concluding that officers were authorized to arrest a suspect in the threshold of her home without a warrant because she lacked a reasonable expectation of privacy). Although, thanks to Justice Rehnquist, the reasonable expectation of privacy doctrine that dictates threshold analysis also governs standing determinations, see Rakas v. Illinois, 439 U.S. 128 (1978). I have not included the standing cases here. I treat them as exclusionary rule decisions because they center around whether an official search has infringed upon the privacy interests of a particular individual, not whether the government has engaged in any Fourth Amendment activity. 90 460 U.S. 276 (1983). 91 529 U.S. 334 (2000). 92 This contrasts with Justice Scalia, who has criticized the Katz threshold standard as a self-indulgent test with no plausible foundation in the text of the Fourth Amendment. Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring). 93 Knotts, 460 U.S. at 281-82, 285. 94 Rehnquist asserted that officers were free to track peoples public movements by electronic means because naked, unaided eyes can acquire the same information. Id. at 282, 285. He ignored the fact that electronic methods of tracking enable officials to gain a comprehensive picture of public travels that fallible human trackers might well be unable to obtain without technological assistance. See James J. Tomkovicz, Technology
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threshold cases,95 Rehnquist routinely rejected claims that law enforcement had searched, joining opinions that applied Katz constrictively. In only a few cases did Rehnquist agree with contentions that searches had occurred.96 Although he wrote few opinions on this subject, he consistently joined those advocating a limited and limiting understanding of the Fourth Amendments regulatory ambit.97 Similarly, Rehnquist authored only a handful of opinions concerning when an encounter between officers and an individual constitutes a seizure. In Dunaway v. New York and Reid v. Georgia, he penned dissents disagreeing with majority decisions that seizures had occurred.98 In I.N.S. v. Delgado, he authored a majority opinion rejecting workers seizure claims.99 All three
and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 MISS. L.J. 317, 363-65 (2002); see also Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 MISS. L.J. 51, 84 (2002) (concluding that the logic of Rehnquists opinion in Knotts proceeded as if the Court had never heard of Katz and that his statement concerning the permissibility of technological sense enhancement contradicts Katz itself). 95 See, e.g., Kyllo v. United States, 533 U.S. 27, 41-51 (2001) (Stevens, J., dissenting); California v. Ciraolo, 476 U.S. 207 (1986) (majority opinion); Smith v. Maryland, 442 U.S. 735 (1979) (majority opinion). 96 I identified two cases other than Bond. In United States v. Karo , 468 U.S. 705 (1984), Rehnquist joined the Courts conclusion that officers do not conduct a search by transferring to a person an object that contains an electronic tracking device, but also agreed that officers do conduct a search when they monitor a signal from an electronic tracking device attached to a container that has entered a private dwelling. See id. at 712, 714-16. He joined a concurrence that would have narrowed the category of those who could claim violations of privacy in such situations. See id. at 721-28 (OConnor, J., concurring in part and concurring in the judgment). In New York v. Class, 475 U.S. 106 (1986), Rehnquist agreed that reaching into a car to move papers obstructing a VIN was a search, see id. at 115, while also joining the majoritys conclusion that motorists lack protected privacy interests in the VIN itself. See id. at 114. 97 I count at least fifteen such opinions, thirteen of which are majority opinions. See Kyllo, 533 U.S. at 41-51 (Stevens, J., dissenting); Florida v. Riley, 488 U.S. 445 (1989); California v. Greenwood, 486 U.S. 35 (1988); Dow Chem. Co. v. United States, 476 U.S. 227 (1986); Ciraolo, 476 U.S. 207; Hudson v. Palmer, 468 U.S. 517 (1984); Oliver v. United States, 466 U.S. 170 (1984); United States v. Jacobsen, 466 U.S. 109 (1984); Illinois v. Andreas, 463 U.S. 765 (1983); United States v. Place, 462 U.S. 696 (1983); Walter v. United States, 447 U.S. 649, 662-65 (Blackmun, J., dissenting); Smith, 442 U.S. 735; United States v. Miller, 425 U.S. 435 (1976); United States v. Mara, 410 U.S. 19 (1973); United States v. Dionisio, 410 U.S. 1 (1973). 98 See Dunaway v. New York, 442 U.S. 200, 221-25 (1981) (Rehnquist, J., dissenting); Reid v. Georgia, 448 U.S. 438, 442 (1980) (Rehnquist, J., dissenting). 99 466 U.S. 210 (1984).
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opinions endorsed a notably narrow understanding of the liberty interest shielded by the Constitutions regulation of seizures of persons. Rehnquist was inclined to allow officers generous room to investigate their unfounded suspicions by means of interactions that did not have to be reasonable.100 I identified seven additional seizure cases in which he did not write an opinion. In five, Rehnquist joined opinions construing the seizure category very restrictively,101 while in two he joined unanimous holdings that suspects had been seized.102 Because of the relative dearth of Rehnquist opinions confronting threshold search and seizure issues, it was important to consult cases in which he did not write to ascertain and document his views. The cases show a belief that both search and seizure categories should be defined stingily by denying the reasonableness of privacy expectations and by concluding that in the absence of discernible and affirmative coercion reasonable people would typically feel free to leave encounters with police officers.103 Rehnquists conceptions of the threshold aspects of the constitutional balance left law enforcement free to engage in a variety of investigative activities without Fourth Amendment control.
100 In Delgado, the sole opportunity he had to actually influence the direction of seizure law, Rehnquists reasoning recognized enormous space for interactions that qualify as unregulated consensual encounters. See id. at 218-21. 101 See United States v. Drayton, 536 U.S. 194 (2002); Florida v. Bostick, 501 U.S. 429 (1991); California v. Hodari D., 499 U.S. 621 (1991); Florida v. Rodriguez, 469 U.S. 1 (1984); United States v. Mendenhall, 446 U.S. 544 (1980). All of these decisions were disputed and controversial, involving situations in which it was arguable that cognizable liberty infringements had occurred. In Michigan v. Chesternut, he agreed with a unanimous Court that officers did not seize a suspect by merely following him. 486 U.S. 567, 572, 574-76 (1988) 102 See Brower v. County of Inyo, 489 U.S. 593 (1989); Brown v. Texas, 443 U.S. 47 (1979). Both of these cases involved seizures effected by means of physical interference with liberty. Neither involved the more difficult and delicate question of whether a seizure by means of a show of authority has occurred. 103 See Yale Kamisar, Confessions, Search and Seizure, and the Rehnquist Court , in THE REHNQUIST COURT: A RETROSPECTIVE 99 (Martin H. Belsky ed., 2002) (asserting that Rehnquist took a cramped view of what constitutes a search and narrowly defined the conduct that amounts to a seizure of an individual); see also Davies, supra note 15, at 1017 ([T]he Rehnquist majority . . . enlarged the room for proactive police conduct by narrowing the definition of whether a person was seized.).
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b. Rehnquists Attitude Toward the Probable Cause Norm: Diluting Its Force and Limiting Its Domain
The Fourth Amendments text requires probable cause for valid warrants to search or seize.104 Prior to William Rehnquists arrival, the Court had declared that probable cause is a norm for warrantless searches and seizures as wellthat is, that searches and seizures without advance judicial approval are ordinarily unreasonable unless supported by that same showing.105 It is certainly plausible to conclude that the Framers explicit prescription of probable cause for warrants reflected a belief that searches and seizures are generally objectionable in its absence because law enforcement interests are insufficient to outweigh privacy, property, or liberty invasions. Rehnquist never overtly contested that fundamental premise about the constitutional balance. His opinions do, however, provide powerful indications of a belief that the prevailing views on the nature and importance of probable cause distorted the Fourth Amendments meaning in ways that illegitimately harm crime control interests. He acknowledged the probable cause requirement on only rare occasions,106 and he strove to diminish the burdens it placed on law enforcement. First, Rehnquist diluted the content of the probable cause requirement. Illinois v. Gates107one of his most important Fourth Amendment opinions and one of very few BurgerRehnquist Court rulings to actually overturn a Warren Court criminal procedure precedenteliminated restrictions upon hearsay-based probable cause showings.108 The Aguilar-Spinelli test had identified two independent types of information that officers had to furnish in hearsay situations, instructing judges to follow a three-stage analysis in evaluating probable cause.109 In
See U.S. CONST. amend. IV (no warrants shall issue, but upon probable cause). See Wong Sun v. United States, 371 U.S. 471, 478-80 (1963). 106 See, e.g., Maryland v. Pringle, 540 U.S. 366, 370 (2003) (referring to [t]he long prevailing standard of probable cause); United States v. Knights, 534 U.S. 112, 121 (2001) (acknowledging that the Fourth Amendment ordinarily requires the degree of probability embodied in the term probable cause, before finding that norm inapplicable). 107 462 U.S. 213 (1983). 108 Id. at 238. 109 See Spinelli v. United States, 393 U.S. 410, 415-19 (1969).
104 105
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Gates, a Rehnquist-led five-Justice majority abandon[ed] that scheme and replaced it with a totality-of-the-circumstances analysis.110 The two previously controlling and independent criteriabasis of knowledge and veracitywere demoted to highly relevant, non-independent variables.111 Justice Rehnquist took great pains to declare that probable cause could not be accurately determined by the Warren Courts labyrinthine body of judicial refinement112 or by any other [r]igid legal rules.113 Only a flexible approach that assessed the entirety of relevant facts could produce results faithful to the Constitution. The Aguilar-Spinelli approach had to be eliminated because it impeded probable cause findings in cases where the information was adequatethereby interfering with effective law enforcement in ways the Framers did not intend.114 Rehnquists liberation of judges from the shackles of the two-pronged test was clearly designed to enable and encourage more findings that searches and seizures were reasonable. The decision expanded constitutional authority to investigate crime. The abolition of the Aguilar-Spinelli hurdles was not the only way in which Gates diluted the probable cause demand. For the first time, the Court specified the degree of probability necessary to satisfy the constitutional standard. According to Justice Rehnquist, officers did not need to establish that it was more probable than not that a search or seizure would bear fruit.115 A fair probability or substantial chance was sufficient.116 By fixing the requisite likelihood of success at this level, Rehnquist further empowered law enforcers. The lower the probability needed, the greater the number of searches and seizures that would satisfy the Constitutionand the broader the legitimate authority to investigate.
Gates, 462 U.S. at 238. Id. at 230, 233. 112 Id. at 240. 113 Id. at 232. 114 Id. at 237 n.10 (refusing to accept the premise that the accurate assessment of probable cause [is] furthered by the two -pronged test); id. at 237 (asserting that the Aguilar-Spinelli approach interferes with governments ability to preserve societal security and seriously imped[es] the task of law enforcement). 115 See id. at 235 (asserting that the preponderance of the evidence standard has no place in probable cause determinations). 116 Id. at 238, 243 n.13.
110 111
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Rehnquist also instructed judges reviewing warrants that they should affirm probable cause findings and sustain the warrants as long as there was a substantial basis for magistrates decisions.117 This highly deferential review standard was designed to add weight on the law enforcement side of the scales by decreasing the chances that a warranted search would be declared invalid. In sum, Gates diluted the strength of the probable cause norm in multiple ways, making it considerably easier to satisfy in hearsay cases and less onerous in general. Rehnquist also sought to counter the law-enforcement restrictive effects of the probable cause norm by increasing the exceptionsthat is, by specifying additional situations in which a lesser showing would suffice. In Terry v. Ohio,118 the Warren Court carved out an exceedingly important exception to the norm. Eight Justices concluded that the probable cause norm could be suspended for stops and frisks.119 According to Chief Justice Warren, the same balancing analysis that ordinarily dictated probable cause for searches and seizures led to a less demanding standard in light of the lesser privacy and liberty intrusions involved in detentions and patdowns and the significant law enforcement interests furthered.120 The majority opinion suggested an intent that Terry be narrowly construed. There was no indication that the interest-balancing analysis employedand the consequent suspension of the probable cause demandshould become the new norm for evaluating reasonableness.121 In Adams v. Williams,122 however, his inaugural Fourth Amendment opinion, recently-appointed Justice Rehnquist read Terry expansively. Moreover, he continued to do so in subsequent opinions, recognizing, advocating, and joining in the approval of ever-greater search and seizure authority that was not bound by the probable cause constraint. In a variety of cases, Rehnquist
Id. at 236-38 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). 392 U.S. 1 (1968). 119 See id. at 27. 120 See id. at 20-27. 121 See Dunaway v. New York, 442 U.S. 200, 208-10 (1979) (explaining that the Courts resort to balancing analysis and suspension of the probable cause norm in Terry had been prompted by a sui generis rubric of police conduct and had produced a narrow ruling that the Court had kept confined). 122 407 U.S. 143 (1972).
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contended, concluded, or agreed that officers actions were reasonable without probable cause.123 Each time this argument prevailed the norm became less normal. In sum, William Rehnquists opinions generally did not start from the presumption that probable cause was a critical requisite of reasonableness. He consistently sought to diminish the potency of the probable cause demand by increasing the situations in which officers were free to act on less. This erosion of the probable cause norm was an integral part of his quest to correct the Fourth Amendment imbalance and to ensure adequate authority to preserve law and order.
c. Rehnquists View of the Search Warrant Requirement: Overt Hostility and Wholesale Rejection
The Warren Court proclaimed the centrality of a second, more controversial norm of reasonablenessthe search warrant requirement. The need for officers to obtain advance judicial approval of searches had first been recognized long before the 1960s.124 According to the warrant rule, searches without warrants are per se unreasonable.125 Even if officers have ample probable cause, if they fail to secure judicial approval prior to searching, the search violates the Fourth Amendment.126 The rule rests on assumptions that the Fourth Amendment aims to prevent unreasonable searchesthose not supported by probable cause and that judges make more accurate probable cause
123 For opinions written by Rehnquist, see United States v. Arvizu, 534 U.S. 266 (2002); United States v. Knights, 534 U.S. 112 (2001); Illinois v. Wardlow, 528 U.S. 119 (2000); United States v. Sokolow, 490 U.S. 1 (1989); United States v. Montoya De Hernandez, 473 U.S. 531 (1985). For opinions of other Justices which he joined, see Alabama v. White, 496 U.S. 325 (1990); Maryland v. Buie, 494 U.S. 325 (1990); Griffin v. Wisconsin, 483 U.S. 868 (1987); Arizona v. Hicks, 480 U.S. 321, 333 (1987) (OConnor, J., dissenting); United States v. Sharpe, 470 U.S. 675 (1985); United States v. Hensley, 469 U.S. 221 (1985); Michigan v. Long, 463 U.S. 1032 (1983); United States v. Place, 462 U.S. 696 (1983). 124 See Weeks v. United States, 232 U.S. 383, 390-91 (1914). Through the years, the Courts commitment to the warrant requirement sometimes waned. See United States v. Rabinowitz, 339 U.S. 56, 63-65 (1950). The Warren Courts support, however, was consistent. 125 See Katz v. United States, 389 U.S. 347, 357 (1967). Thus, the warrant requirement finds its roots in the unreasonableness clause of the Fourth Amen dment, not in the warrant clause. 126 See id.; Johnson v. United States, 333 U.S. 10, 14 n.4 (1948).
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determinations than officers who are understandably influenced by their responsibilities.127 By requiring police to document their information under oath and obtain judicial sanction beforehand, the warrant demand is thought to prevent unconstitutional searches. First, judges will deny warrants when probable cause showings are deficient, and, when they do grant authority, they will restrict the scope of searches and seizures, permitting only what is justified by officers showings of cause.128 Second, officers will not be able to bootstrap unreasonable searches by reliance on facts learned from the search.129 The Warren Court acknowledged that there were exceptional situations justifying warrantless searches, but declared that they were few and welldelineated.130 Because there is no explicit textual basis for the warrant norm, and history shows a concern with general warrants, not warrantless searches,131 the legitimacy of the warrant demand has long been a subject of dispute.132 William Rehnquist sided with the opponents.133 He saw it as a serious misinterpretation of the Fourth Amendment, a judicial creation that needlessly impeded effective law enforcement.134 Because he did not deem a search unreasonable simply because officers had not secured judicial approval, he would have preferred abrogation of the warrant requirement. A majority, however, never coalesced around this position, and the Court continued to adhere to the basic principle
127 See Johnson, 333 U.S. at 14 n.3. Thus, the warrant requirement has inextricable ties to the probable cause norm. 128 See James J. Tomkovicz, California v. Acevedo: The Walls Close in on the Warrant Requirement, 29 AM. CRIM. L. REV. 1103, 1144-46 (1992). 129 See id. at 1146-47. 130 See Katz, 389 U.S. at 357. 131 See Tomkovicz, The Walls Close in on the Warrant Requirement , supra note 128, at 1125, 1130. 132 See id. at 1104-05, 1116-63 (explaining in detail the various arguments for and against the warrant rule). 133 See Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEM. L. REV. 483, 522 (1995) (asserting that Rehnquist share[d the] view that the test of constitutionality is reasonableness and search warrants are not required for reasonable searches). 134 See Robbins v. California, 453 U.S. 420, 438-39 (1981) (Rehnquist, J., dissenting); Payton v. New York, 445 U.S. 573, 621 (1980) (Rehnquist, J., dissenting); id. at 607-11 (White, J., dissenting); see also Steagald v. United States, 451 U.S. 204, 223-25 (1981) (Rehnquist, J., dissenting).
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that a search warrant was a prerequisite for reasonableness.135 As a fallback position, Rehnquist sought to erode the force of the rule by advocating, fashioning, and expanding exceptions.136 In his own opinions and in those he joined, new exceptions emerged and acknowledged exceptions stretched to accommodate an increasing array of warrantless searches.137 As a result, the search warrant rule was gradually, steadily drained of substance and potency.138 Rehnquist resisted this longstanding doctrinal pillar. He believed that it distorted the balance struck by the Fourth Amendment, denying officers investigative authority they were entitled to exercise and impeding their efforts to preserve order and public safety by apprehending criminals and gathering evidence. In no opinion did he acknowledge the primacy of this premise that most of his colleagues and predecessors accepted as fundamental. His criticism of the legitimacy of the warrant demand and his consistent efforts to shrink the territory it
135 See Robbins, 453 U.S. at 423 (plurality opinion); Steagald, 451 U.S. at 212-14; Payton, 445 U.S. at 586; Arkansas v. Sanders, 442 U.S. 753, 758 (1979); United States v. Chadwick, 433 U.S. 1, 8-11 (1977). 136 He also would have weakened the warrant demand by holding that it was satisfied even if officers obtained judicial approval by means of deliberate falsehoods. See Franks v. Delaware, 438 U.S. 154, 181-82 (1978) (Rehnquist, J., dissenting). 137 For Rehnquist opinions fitting this description, see Thornton v. United States, 541 U.S. 615 (2004); United States v. Knights, 534 U.S. 112 (2001); Florida v. Wells, 495 U.S. 1 (1990); Colorado v. Bertine, 479 U.S. 367 (1987); Robbins, 453 U.S. at 437 (Rehnquist, J., dissenting); Michigan v. Clifford, 464 U.S. 287, 305 (1984) (Rehnquist, J., dissenting); Steagald, 451 U.S. at 223 (Rehnquist, J., dissenting); Payton, 445 U.S. at 620 (Rehnquist, J., dissenting); Mincey v. Arizona, 437 U.S. 385, 405 (1978) (Rehnquist, J., concurring in part and dissenting in part); Michigan v. Tyler, 436 U.S. 499, 516 (1978) (Rehnquist, J., dissenting); Gustafson v. Florida, 414 U.S. 260 (1973); United States v. Robinson, 414 U.S. 218 (1973); Cady v. Dombrowski, 413 U.S. 433 (1973). For other Justices opinions that he joined, see, e.g., Wyoming v. Houghton, 526 U.S. 295 (1999); California v. Acevedo, 500 U.S. 565 (1991); Illinois v. Rodriguez, 497 U.S. 177 (1990); OConnor v. Ortega, 480 U.S. 709 (1987); California v. Carney, 471 U.S. 386 (1985); United States v. Johns, 469 U.S. 478 (1985); Welsh v. Wisconsin, 466 U.S. 740, 756 (1984) (White, J., dissenting); United States v. Ross, 456 U.S. 798 (1982); Washington v. Chrisman, 455 U.S. 1 (1982); Arkansas v. Sanders, 442 U.S. 753, 768 (1979) (Blackmun, J., dissenting); United States v. Chadwick, 433 U.S. 1, 17 (1977) (Blackmun, J., dissenting); South Dakota v. Opperman, 428 U.S. 364 (1976); Texas v. White, 423 U.S. 67 (1975) (per curiam). 138 See Acevedo, 500 U.S. at 582 (Scalia, J., concurring in the judgment) (observing that the warrant requirements victory was illusory because it had become so riddled with exceptions that it was basically unrecognizable).
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governed were further efforts to achieve the constitutional accommodation of interests he perceived.139
d. Rehnquists Position on the Exclusionary Rule: Utter Contempt and Overt Resistance
There is no more controversial, emotionally charged component of the Fourth Amendment balance than the exclusionary rulea bar to proving criminal charges by means of evidence acquired in violation of that provision.140 The longstanding federal court rulewhich predates the Warren Court by half a centurywas adopted with unanimous support.141 The state versionwhich is the Warren Courts offspringbecame law with the barest of majority support.142 By the end of the Warren era, there was a presumption that unconstitutionally gathered evidence was barred in all but a limited number of exceptional situations.143 William Rehnquist was fervently opposed to the exclusionary 144 rule. He found no constitutional support for a doctrine, which,
139 In some opinions, Rehnquist relied on the fact that officers had secured a warrant as a predicate for finding investigatory conduct not authorized by the warrant to be reasonable. See Steagald, 451 U.S. at 223-26 (Rehnquist, J., dissenting); Ybarra v. Illinois, 444 U.S. 85, 104-07 (1979) (Rehnquist, J., dissenting). In other words, he sought to expand warrantless search authority on the ground that officers had obtained judicial permission for a related search or seizure. 140 Despite the modern Courts description of the exclusionary rule as a judicial creation, there can be no doubt that it is constitutional in character not a mere rule of evidence or an exercise of supervisory power. The source of the federal court rule is the Fourth Amendment and the source of the state court rule is the Fourteenth Amendment Due Process Clause. For a thorough discussion of the history, nature, and doctrinal details of the exclusionary rule, see JAMES J. TOMKOVICZ, CONSTITUTIONAL EXCLUSION: THE RULES, RIGHTS, AND REMEDIES THAT STRIKE THE BALANCE BETWEEN FREEDOM AND ORDER 1-60 (2011). 141 See Weeks v. United States, 232 U.S. 383, 398 (1914). 142 See Mapp v. Ohio, 367 U.S. 643 (1961). Just five Justices cast their votes for adoption of the state court exclusionary rule in Mapp, and one of those Justices was not persuaded that the Fourth Amendment, standing alone, could support the rule. Id. at 661 (Black, J., concurring). He believed that illegally obtained evidence had to be excluded because of the combined effect of the Fourth and Fifth Amendments. Id. at 662. 143 See supra, note 77 and accompanying text. 144 McClurg, supra note 8, at 775 (asserting that Rehnquist made clear . . . his distaste for the exclusionary rule; Rahdert, supra note 16, at 846-47 (contending that Rehnquist criticized the exclusionary rule and . . . questioned its underpinnings and steadfastly adhered to th[e] view that it was not legitimate).
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to his mind, was an illegitimate and indefensible creation of the judiciary. In addition, he objected to the substantial and unjustified impediments it posed to effective law enforcement. He made his perspectives on the suppression doctrine clear prior to his appointment.145 During his first ten years as a Justice, he confirmed his stance and lobbied for its demolition. Justice Rehnquist launched his first offensive three years after joining the Court in United States v. Peltier.146 Although he did not immediately call for the overthrow of the rule, he expounded an entirely new understanding of the exclusionary rule in Fourth Amendment cases, which, in a dissenting colleagues view, forecast[ its] complete demise.147 Four years later, in California v. Minjares,148 he thoroughly aired his concerns and the premises that led him to conclude that the rule was a fundamental and grave misinterpretation. In Rehnquists opinion, the suppression doctrine had turned the criminal process into a sport of fox and hound with anomalous consequences.149 He was morally certain that this unique jurisprudential rule applied only in the United States.150 It impose[d] tremendous costs on the judicial process, distracting from the very purpose of trialaccurately ascertaining guilt or innocence.151 It deflect[ed] the truthfinding process and often free[d] the guilty, was disproportionate, undermined justice, and could well generat[e] disrespect for the law and administration of justice.152 Rehnquist was certain that the Justices had made a wrong turn, that societys reaction would mirror his,153 and that suppression was
145 See Craig M. Bradley, Rehnquist Scaled Back Rights of the Accused , 41 TRIAL 56, 56 (2005) (noting that in 1969 Rehnquist wrote a memorandum in which he criticized the balance struck by the Warren Court and specifically complained about . . . the Fourth Amendments exclusionary rule). 146 422 U.S. 531 (1975). In Peltier, the Court held by a 5-4 vote that the exclusionary rule did not apply retroactively to a case on direct appeal at the time the Court decided, in Almeida-Sanchez v. United States, 413 U.S. 266 (1973), that roving border patrol searches violate the Fourth Amendment. Peltier, 422 U.S. at 534-35. 147 Id. at 551 (Brennan, J., dissenting). 148 443 U.S. 916 (1979) (Rehnquist, J., dissenting from denial of stay). 149 Id. at 916-17. 150 Id. at 919. 151 Id. 152 Id. at 920. 153 Id.
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unsupportable on either a judicial integrity or deterrence foundation.154 Exclusion was not a mandate of the Fourth Amendment, but, instead, was an ill-advised judicial construct. Ultimately, he believed that there were persuasive reasons to reconsider whether, and to what extent, the so-called exclusionary rule . . . should be retained.155 In the years immediately following Minjares, Rehnquist expressed his opposition on only a couple of occasions.156 During his last twenty-four years on the Court, including his entire run as Chief Justice, he did not author an opinion advocating abrogation. There is absolutely no reason to believe that he had changed his mind. The better explanation is that he had recognized the futility of frontal assault and had elected a different strategy.157 Justice Rehnquist seems to have realized that gradual erosion was an approach more likely to yield tangible dividends. He sought to decrease the occasions when exclusion would be possible in a number of opinions that contained generous doses of antiexclusionary rule rhetoric and relied on premises that facilitated constriction of the rules reach. Rakas v. Illinois158 was by far his most significant contribution to the unraveling of the exclusionary rule. His bold and dramatic alteration of standing doctrine shrank the class of individuals who could claim suppression and provided a prescription for further diminution.159 Although Rehnquist did not
Id. at 924-26. Id. at 927-28. 156 See New York v. Belton, 453 U.S. 454, 463 (1981) (Rehnquist, J., concurring) (stating that he is joining the majority opinion [b]ecause it is apparent that a majority of the Court is unwilling to overrule Mapp v. Ohio); Robbins v. California, 453 U.S. 420, 437-39, 443 (1981) (asserting that he had in no way abandoned his opposition to exclusion and that a solution short of overruling Mapp v. Ohio [was] apt to be illusory); see also Payton v. New York, 445 U.S. 573, 620 (1980) (Rehnquist, J., dissenting). 157 Alternatively, or in addition, perhaps he believed that his initial attacks had accomplished the objective that was attainablesoftening the rule up for a slower, incremental kill. 158 439 U.S. 128 (1978). 159 Based on Rakass reform of standing law, the Court rejected the premise that a property interest in an item seized provided a basis for objecting to an unreasonable search, see Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980); abolished the automatic standing doctrine for possessory offenses, see United States v. Salvucci, 448 U.S. 83, 95 (1980); concluded that even deliberate, bad-faith violations of the Fourth
154 155
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author any opinions recognizing new exclusionary rule exceptions, he happily joined several opinions that created novel holes in the Fourth Amendments evidentiary bar, and he wrote and subscribed to opinions that expanded extant exceptions.160 William Rehnquists campaign against the exclusionary rule was his top Fourth Amendment priority. It was an integral part of the quest to strike a proper Fourth Amendment balance and restore to law enforcement their entitlement to prosecute effectively. His tactics evolved from a call for eradication to a pragmatic, unrelenting crusade to confine the doctrines scope and minimize its damaging impacts. He did not achieve his ultimate goal, but his rhetorical and doctrinal assaults weakened the rules foundations and made it considerably less likely that officers Fourth Amendment missteps would allow guilty defendants to evade just convictions.
Amendment could not be the basis for suppression by a claimant who lacked a reasonable expectation of privacy in the place searched, see United States v. Payner, 447 U.S. 727 (1980); and held that short-term social guests with limited connections to a dwelling could not object to a search of that dwelling, see Minnesota v. Carter, 525 U.S. 83, 91 (1998). Rehnquist authored the majority opinions in Rawlings, Salvucci, and Carter. 160 Rehnquist opinions include Arizona v. Evans, 514 U.S. 1 (1995), which expanded the good-faith exception, and United States v. Ceccolini, 435 U.S. 268, 278 (1978), which liberalized the attenuation exception for live-witness testimony. For antisuppression opinions that Rehnquist joined, see Pa. Bd. of Prob. v. Scott, 524 U.S. 357 (1998); New York v. Harris, 495 U.S. 14 (1990); Murray v. United States, 487 U.S. 533 (1988); Illinois v. Krull, 480 U.S. 340 (1987); I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984); United States v. Leon, 468 U.S. 897 (1984); Payner, 447 U.S. 727; United States v. Havens, 446 U.S. 620 (1980); United States v. Crews, 445 U.S. 463 (1980); Stone v. Powell, 428 U.S. 465 (1976); United States v. Janis, 428 U.S. 433 (1976); United States v. Calandra, 414 U.S. 338 (1974). Rehnquist also took gratuitous swipes at the exclusionary rule and looked for opportunities to argue (or at least suggest) that it was inapplicable in cases where suppression was not at issue. See, e.g., Payton, 445 U.S. at 620-21 (Rehnquist, J., dissenting); Ybarra v. Illinois, 444 U.S. 85, 108 (1979) (Rehnquist, J., dissenting); Dunaway v. New York, 442 U.S. 200, 225-27 (1979); Franks v. Delaware, 438 U.S. 154, 186 (1978) (Rehnquist, J., dissenting); United States v. Santana, 427 U.S. 38, 41 n.2 (1976).
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e. Rehnquists Refusal to Accept Pro-Fourth Amendment Premises

The preceding subsections describe William Rehnquists antipathy toward established Fourth Amendment norms. This subsection discusses some influential premises that he refused to accept. Rehnquists resistance is hardly surprising because the premises involved favor Fourth Amendment protection at the expense of law enforcement authority.
i. The Least Intrusive Alternative Principle

If officers can accomplish their purposes by conduct that intrudes less on privacy, property, or liberty interests, it is arguably unreasonable for them to use more intrusive options. Consequently, the Fourth Amendment might require officials to employ the least intrusive alternative methods that will accomplish their objectives. The status and force of this premise in the Supreme Courts Fourth Amendment jurisprudence is not entirely clear. In at least one opinion the Court relied on it explicitly,161 and it has seemed implicit in other decisions protective of Fourth Amendment liberties.162 What is clear is Rehnquists hostile attitude toward such reasoning. In just his second Fourth Amendment opinion, he declared that [t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means [did]
161 See Delaware v. Prouse, 440 U.S. 648, 659-60 (1979); see also Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) (declaring that during investigative detentions officers should employ the least intrusive means reasonably available to verify or dispel [their] suspicion in a short period of time). 162 I find less intrusive alternative logic implicit in the holding in Terry v. Ohio, 392 U.S. 1, 25-26 (1968), that officers may not reach beneath clothing when conducting weapons frisks; in the conclusion in United States v. Chadwick, 433 U.S. 1, 13 (1977), that officers must seize containers and apply for search warrants; and in the determination in United States v. Sharpe, 470 U.S. 675, 686 (1985), that officers may not detain suspects longer than is necessary for the diligent pursuit of their suspicions. In Chambers v. Maroney, 399 U.S. 42 (1970), a majority allowed a warrantless search of a car on probable cause, rather than requiring that it be seized and held pending application for a warrant, because of an inability to decide whether a seizure was less intrusive than a search. See id. at 51-52. Justice Harlan dissented because he believed that a seizure almost always inflicted less severe constitutional injury than a search. See id. at 63-65 (Harlan, J., dissenting).
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not, by itself, render the search unreasonable.163 Shortly after becoming Chief Justice, he announced that officers need not always pursue alternative investigatory methods that inflict less severe constitutional harm, asserting that [t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative less intrusive means.164 Two years later, he asserted that the reasonableness of [an] officers decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.165 Finally, in finding a drunk driving roadblock constitutional, he stressed that for purposes of Fourth Amendment analysis, the choice among . . . reasonable alternatives remains with the governmental officials and that judges should not declare a choice unconstitutional because another reasonable alternative law enforcement technique[] might be available to deal with a serious public danger.166 As noted, it is not clear that Rehnquist was rejecting accepted logic, which was firmly established in precedent. Moreover, on no occasion did he say that judges should never deem a search or seizure unreasonable because of the availability of a less intrusive means of accomplishing a law enforcement objective, that the Fourth Amendment never requires officers to employ less injurious means to serve their purposes, or that greater intrusions than necessary are always reasonable. Nonetheless, his opinions suggest a very limited role, at best, for the less intrusive alternative premise.167 His message was that judges should be
Cady v. Dombrowski, 413 U.S. 433, 447 (1973). Colorado v. Bertine, 479 U.S. 367, 374 (1987) (quoting Illinois v. Lafayette, 462 U.S. 640, 647 (1983)). 165 United States v. Sokolow, 490 U.S. 1, 11 (1989). 166 Mich. Dept of State Police v. Sitz, 496 U.S. 444, 453 -54 (1990). All of these were majority opinions. Rehnquist also cast aspersions upon the premise in other majority opinions. See United States v. Montoya De Hernandez, 473 U.S. 531, 542 (1985); United States v. Villamonte-Marquez, 462 U.S. 579, 591 n.5 (1983); Bell v. Wolfish, 441 U.S. 520, 559 n.40 (1979). 167 In fact, his writings lead me to believe that Rehnquist was more hostile to least intrusive alternative logic than his carefully worded statements convey. I believe that if he had been able to express his own preferences, unconstrained by the need to please a majority of his fellow Justices, Rehnquists rejection of the principle might have been more categorical.
163 164
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hesitant, rarely, if ever, substituting their choices for those of officers when it comes to effective law enforcement.168 In Rehnquists view, if there are adequate government interests justifying a particular degree of intrusion, that intrusion is presumptively reasonable. The fact that those interests might also be furthered with less loss of privacy does not mean that the greater intrusion is unjustified. His conception of the Fourth Amendment balance did not require officers to inflict less serious injury even if they could do so consistent with the performance of their duties. Moreover, he believed that forcing officers to identify and pursue less intrusive alternatives would often impede their efficacy by requiring them to make difficult, if not impossible, decisions.169 For Rehnquist, the less intrusive alternative principle threatened effective law enforcement and did not assist judges discernment of the correct Fourth Amendment balance. Reasonableness should not depend on a judicial determination that officers could preserve order and public safety by methods that did less damage to privacy, property, or liberty. ii. Reverence for Home Privacy Supreme Court opinions emphasize the Fourth Amendment significancethe almost venerable qualityof home privacy, declaring that the provision reflects the belief that a mans home is his castle.170 In one of his few genuinely pro-Fourth
168 It is arguable that the Fourth Amendment reasonableness requirement imposes a general duty on judges to demand that officers pursue the least intrusive alternative means that will effectively accomplish their investigative ends. If less intrusive means are readily available, there may well be no constitutional justification for a greater intrusion, nothing that outweighs the additional harm done by that intrusion. 169 See Colorado v. Bertine, 479 U.S. 367, 375 (1987). 170 For example, see Georgia v. Randolph, 547 U.S. 103, 115 (2006), which relied on the centuries-old principle of respect for the privacy of the home, id. (quoting Wilson v. Layne, 526 U.S. 603, 610 (1999)). The Court in Randolph also observed that it is beyond dispute that the home is entitled to special protection, id. (quoting Minnesota v. Carter, 525 U.S. 83, 99 (1998)), and declared that [w]e have . . . lived our whole national history with an understanding of the ancient adage that a mans house is his castle, id. (quoting Miller v. United States, 357 U.S. 301, 307 (1958)). See also Miller, 357 U.S. at 307; Payton v. New York, 445 U.S. 573, 585 (1980) (noting that the physical entry of the home is the chief evil against which the . . . Fourth Amendment is direction); Silverman v. United States, 365 U.S. 505, 511 (1961) (asserting that the
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Amendment opinions, Chief Justice Rehnquist relied upon the uniquely high value of home privacy.171 Nonetheless, there are indications of negativity toward the premise that dwellings deserve extra solicitude in Fourth Amendment analysis. Some opinions suggest that William Rehnquist did not share the majoritys special reverence for home privacy, that he was less inclined than others to accord home privacy the added weight that could trump law enforcement interests. In Steagald v. United States, the harm done by entering homes in search of felony suspects led a majority to affirm search warrant protection.172 Justice Rehnquist dissented, concluding that home privacy did not require the safeguard of prior judicial approval.173 Moreover, he challenged the Courts reliance on the adage that a mans home is his castle as uncritical, claiming that while it may apply in civil cases, it should not govern in criminal cases.174 In Michigan v. Clifford175, Rehnquist dissented from the Courts restrictions on home entries following fires. He challenged the majoritys reliance on the fact that the privacy interests in the residence . . . were significantly greater than those in business premises, observing that private commercial buildings . . . are as much protected by the Fourth Amendment as are private dwellings.176 In Rakas v. Illinois, Rehnquists landmark opinion limiting passengers privacy interests in vehicles, he first noted that privacy interests in automobiles were not identical to those in houses, then went out of his way to declare that the claim made by the defendants in Rakas would fail even in an analogous situation in a dwelling place.177 He disagreed with the Courts conclusion in Minnesota v. Olson that
right of a man to retreat into his own home and there be free from unreasonable governmental intrusion lies [a]t the very core of the Fourth Amendment). 171 See Wilson v. Layne, 526 U.S. 603, 610 (1999). 172 See Steagald, 451 U.S. 204, 222 (1981). 173 Id. at 223, 227. He also dissented from the Courts earlier holding, in Payton, 445 U.S. at 602-03, that an arrest warrant is needed to enter a suspected felons home to arrest him. See id. at 621 (Rehnquist, J., dissenting). 174 Steagald, 451 U.S. at 229-30 (Rehnquist, J., dissenting). 175 464 U.S. 287 (1984). 176 464 U.S. 287, 307 (1984) (Rehnquist, J., dissenting). 177 439 U.S. 128, 148 (1978). He also rejected a prior holding that an individuals legitimate presence in a home was sufficient to give rise to a Fourth Amendment privacy interest in the home. See id. at 142-43.
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overnight guests have privacy interests in their hosts homes,178 and, when the issue of other social guests privacy interests in dwellings came before the Court in Minnesota v. Carter, Rehnquists majority opinion denied privacy claims.179 Moreover, he did not subscribe to the majority ruling that almost all social guests possess reasonable privacy expectations in their hosts homes.180 In addition, Chief Justice Rehnquists majority opinion in United States v. Knights, concluded that a mere reasonable suspicion was sufficient to outweigh the diminished home privacy of a probationer.181 Moreover, he indicated that the home privacy interest of the probationer could have been so diminished, or completely eliminated . . . that a search . . . without any individualized suspicion would have been reasonable.182 Finally, when a bare majority relied on home privacys special status in holding that thermal imaging is subject to Fourth Amendment regulation,183 the Chief Justice joined a dissent that deemed the home privacy interests at issue insignificant.184 All together, Rehnquists opinions and votes indicate that he was not as receptive to this fundamental Fourth Amendment premise as his peers and predecessors. To him, home privacy should not impede effective law enforcement more than the other privacies sheltered by that guarantee.185
495 U.S. 91, 101 (1990) (noting that Chief Justice Rehnquist dissented). 525 U.S. 83, 91 (1998). 180 The Chief Justice authored a majority opinion that Justice Kennedy joined. In a separate concurrence, however, Justice Kennedy expressed the view that almost all social guests have privacy interests in their hosts homes. Id. at 99. Four other Justices declared that all social guests have such privacy interests. See id. at 108-09 (Ginsburg, J., dissenting); id. at 103 (Breyer, J., concurring in the judgment). Consequently, a majority of Justices concluded that almost all social guests are entitled to Fourth Amendment protection. See id. at 109 n.2 (Ginsburg, J., dissenting). 181 534 U.S. 112, 120-21 (2001). 182 Id. at 120 n.6. 183 Kyllo v. United States, 533 U.S. 27, 31, 34 (2001). 184 Id. at 45 (Stevens, J., dissenting). 185 On the other hand, Rehnquist was willing to concede the significance of the traditional expectation of privacy within a dwelling place as a basis for contrast with the nonexistent privacy interest in publicly visible movements outside a home. See United States v. Knotts, 460 U.S. 276, 282 (1983). In addition, he gladly joined opinions that denied search warrant protection because the privacy interests in vehicles are significantly less than those in a home. See South Dakota v. Opperman, 428 U.S. 364, 367 (1976). He did not believe that home privacy should be relied upon to elevate
178 179
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iii. Concern for Innocents and Fear of a Police State Inordinate risks to the privacy or liberty interests of innocent persons can militate in favor of more expansive Fourth Amendment protection.186 The Justice for whom William Rehnquist clerked, Robert Jackson, eloquently explained the potential Fourth Amendment relevance of jeopardy to innocent individuals.187 Apparently, Jacksons attitude was not contagious. Justice Rehnquist was not receptive to arguments for broader Fourth Amendment shelter to guard against privacy and liberty threats to innocents. The premise did not inform his reasoning, and he ignored other Justices contentions that it should influence Fourth Amendment decision making. In a number of cases where potential impacts on innocent citizens influencedor appeared to influencemajorities, Rehnquist dissented.188 In other cases, his majority opinions provoked suggestions of insensitivity to the harms that innocents might suffer.189
or enhance the protection afforded dwellings, but he did find the privacy interests in dwellings a useful basis for diminishing the protection afforded other, less worthy locations. 186 See Steagald v. United States, 451 U.S. 204, 222 (1981); Reid v. Georgia, 448 U.S. 438, 441 (1980); Dunaway v. New York, 442 U.S. 200, 214 (1979); AlmeidaSanchez v. United States, 413 U.S. 266, 284 (1973); Davis v. Mississippi, 394 U.S. 721, 726 (1969). 187 See Brinegar v. United States, 338 U.S. 160, 182 (1949) (Jackson, J., dissenting). 188 See City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (Rehnquist, J., dissenting); Chandler v. Miller, 520 U.S. 305, 323 (1997) (Rehnquist, J., dissenting); Steagald, 451 U.S. at 223 (Rehnquist, J., dissenting); Reid, 448 U.S. at 442 (Rehnquist, J., dissenting); Dunaway, 442 U.S. at 221 (Rehnquist, J., dissenting); Ybarra v. Illinois, 444 U.S. 85, 108 (1979) (Rehnquist, J., dissenting); see also United States v. James Daniel Good Real Prop., 510 U.S. 43, 72-73 (Rehnquist, J., dissenting) (1993). 189 See Muehler v. Mena, 544 U.S. 93, 109 (2005) (Stevens, J., concurring in the judgment); Illinois v. Wardlow, 528 U.S. 119, 139 (2000) (Stevens, J., concurring in part and dissenting in part); Minnesota v. Carter, 525 U.S. 83, 107-08 (1998) (Ginsburg, J., dissenting); Maryland v. Wilson, 519 U.S. 408, 422 (1997) (Kennedy, J., dissenting); Michigan Dept of State Police v. Sitz, 496 U.S. 444, 465, 472, 475 (1990) (Stevens, J., dissenting); United States v. Sokolow, 490 U.S. 1, 12-13 (1989) (Marshall, J., dissenting); United States v. Montoya de Hernandez, 473 U.S. 531, 545 (1985) (Stevens, J., concurring in the judgment); id. at 548 (Brennan, J., dissenting). On at least one occasion, Rehnquist relied on the impact of a police practice on innocent citizens as a basis for restricting Fourth Amendment protection. See Sitz, 496 U.S. at 452 (observing that what counted was the fear and surprise engendered in law abiding motorists, not those who were intoxicated).
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A related and potentially influential consideration is that a pro-law enforcement interpretation could be a step down the road to totalitarianism. Fears of police-state practices have occasionally prompted Justices to favor more generous search and seizure protection.190 This theme, which also informed Justice Jacksons understanding of the Fourth Amendment,191 found no traction in his former law clerks Fourth Amendment opinions. Once again, he was not persuaded by dissenters suggestions that his positions on lawful police practices were more consistent with authoritarian regimes.192 iv. The Perils Posed by Technology The dangers to privacy engendered by scientific and technological advances can militate in favor of greater Fourth Amendment safeguards. Such perils, however, did not seem to influence William Rehnquist. His majority opinion in United States v. Knotts concluded that the use of an electronic tracking device to monitor public movements was beyond the Fourth Amendments regulatory sphere.193 He reasoned that [n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in [that] case.194 Moreover, the complaint . . . that scientific devices . . . enabled the police to be more effective in detecting crime . . .
Rehnquists contention that the Fourth Amendments balance contemplates that innocent persons will be deprived of the liberty and privacy interests it safeguards was undeniably correct. See Wardlow, 528 U.S. at 126; Baker v. McCollan, 443 U.S. 137, 145 (1979). The issue here is not whether innocents will be harmed by unreasonable searches and seizures, but whether impacts of police practices on innocents is a salient consideration to be weighed in the Fourth Amendment balance. 190 In fact, expression of this fear is usually found in dissenting opinions. See Kentucky v. King, 131 S. Ct. 1849, 1864 (2011) (Ginsburg, J., dissenting); United States v. White, 401 U.S. 745, 760 (1971) (Douglas, J., dissenting); Rabinowitz v. United States, 339 U.S. 56, 82 (1950) (Frankfurter, J., dissenting). 191 See Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting); Johnson v. United States, 333 U.S. 10, 17 (1948). 192 See Montoya de Hernandez; 473 U.S. at 550, 565 (Brennan, J., dissenting); Illinois v. Gates, 462 U.S. 213, 291 (1983) (Brennan, J., dissenting). 193 460 U.S. 276, 285 (1983). 194 Id. at 282.
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simply ha[d] no constitutional foundation.195 Construed narrowly, Rehnquists reasoning might be well within the Fourth Amendment mainstream. Some technological developments pose no threat to constitutional values, and the improvement of crimefighting capacities alone should not necessarily trigger Fourth Amendment concern. Rehnquists pronouncements, however, are susceptible to a more expansive interpretation that is dismissive of and arguably insensitive to legitimate fears that scientific and technological progress might erode fundamental rights. They could suggest that officers have nearly unfettered freedom to exploit technology. In part because of his statements about the relationship between technological sense enhancement and the Fourth Amendment, three Justices who agreed that the electronically-assisted tracking in Knotts was unobjectionable refused to join Rehnquists opinion.196 Opinions Rehnquist joined provide additional evidence that he was not particularly troubled by scientific and technological threats to Fourth Amendment values. In California v. Ciraolo, he agreed with the conclusion that officers could take advantage of advances in aviation to monitor otherwise private activities in residential curtilage.197 Chief Justice Burgers opinion dismissed the dissenting protest that a failure to regulate aerial surveillance was irreconcilable with the spirit and intent of Katz v. United Stateswhich revolutionized Fourth Amendment doctrine in response to technological encroachment on constitutional values.198 Kyllo v. United States held that thermal imaging of a
195 Id. at 284. Rehnquist also stated that scientific enhancement of th[e] sort [involved in Knotts] raise[d] no constitutional issues which visual surveillance would not also raise because an officer who was following in his car throughout [the] journey could have observed the movements monitored by electronic means. Id. at 285. He refused to entertain the realistic possibility that electronic devices might well enable surveillance of public movements that would be impossible or impractical if officers had to depend on unaided human capabilities. 196 Id. at 288 (Stevens, J., concurring). 197 476 U.S. 207 (1986). Because the curtilage receives protection as part of the home, see Oliver v. United States, 466 U.S. 170, 180 (1984), the outcome of Ciraolo is also arguably inconsistent with the special regard for home privacy found in precedent. See Ciraolo, 476 U.S. at 220-21, 224 (Powell, J., dissenting). 198 See id. at 215-16, 218-19 (Powell, J., dissenting). According to Chief Justice Burger, Katzs concern with electronic eavesdropping was inapposite to officers use of air travel to gain visual access to curtilage activities. See id. at 215.
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home is a search in part because technology should not be allowed to shrink Fourth Amendment shelter for home privacy.199 Rehnquist joined a dissent that deemed the enhancement of human senses afforded by thermal imagers to be no cause for concern.200 In sum, the record suggests that William Rehnquist disagreed with some fundamental premises that others have found germane to Fourth Amendment interpretation. He was overly negative about the least intrusive alternative principle, skeptical about special reverence for home privacy, seemingly unconcerned by impacts on the privacy and freedom of innocent persons or creeping authoritarianism, and not troubled by privacy losses resulting from scientific and technological progress. These considerations did not influence his efforts to hold the [Fourth Amendment] balance true.201
2. The Positives: Rehnquists Approach to Fourth Amendment Interpretation

The last section discussed how the Chief Justice rejected some established Fourth Amendment norms and principles and took a limiting view of others. This section describes the Fourth Amendment reasoning he preferred, the lights that guided his understanding of the constitutional balance. From his earliest time on the Court, Justice Rehnquist focused on a single word as the key to Fourth Amendment construction. His second majority opinion announced the fundamental theme that he would sound over and over through the yearsthat the ultimate standard set forth in the Fourth Amendment is reasonableness.202 In opinion after opinion, majority, concurring, and dissenting, he repeated this mantra. Because the Framers had been explicit, prohibiting only unreasonable searches and seizures, reasonableness was the central requirement,203 the overarching principle,204 and the
199 200 201 202 203 204
533 U.S. 27, 34-35 (2001). See id. at 42-44, 49-50 (Stevens, J., dissenting). Illinois v. Gates, 462 U.S. 213, 241 (1983). Cady v. Dombrowski, 413 U.S. 433, 439 (1973). Texas v. Brown, 460 U.S. 730, 739 (1983). United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983).
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touchstone205 that must guide every interpretation. The Fourth Amendment commands but one elementary thingthat searches and seizures be reasonable.206 The task of the judiciary is simpleto determine whether any particular search or seizure complies with the textual command.207 As already discussed, Rehnquist rejected the notion that search warrants were a norm of reasonableness,208 and his opinions did not treat probable cause as a point of departure, that is, a presumptive dictate of reasonableness.209 He did not approach reasonableness determinations with assumptions that the most demanding standards applied and that the government must justify their suspension. Reasonableness was not capable of precise definition or mechanical application, but, rather, always require[d] a balancing of the need for the particular search [or seizure] against the invasion of personal rights that the search [or seizure] entails.210 The only way to determine compliance with the central, overarching Fourth Amendment touchstone was the familiar balancing process that weighs the individuals interests against the governments.211 Evaluations of reasonableness called
Florida v. Jimeno, 500 U.S. 248, 250 (1991). United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). 207 See also Chandler v. Miller, 520 U.S. 305, 325 (1997) (Rehnquist, J., dissenting); Maryland v. Wilson, 519 U.S. 408, 411 (1997); Florida v. Royer, 460 U.S. 491, 520 (1983) (Rehnquist, J., dissenting); Steagald v. United States, 451 U.S. 204, 224 (1981) (Rehnquist, J., dissenting); Michigan v. Tyler, 436 U.S. 499, 516 (1978) (Rehnquist, J., dissenting). 208 See supra text accompanying notes 104-123 209 See supra text accompanying notes 124-39. Of course, he did not dispute the textual requirement of probable cause to support warrants. Nor did he reject the idea that arrests or fully intrusive searches for investigatory purposes might well demand probable cause. In fact, he joined opinions acknowledging the need for probable cause to arrest and to search. See, e.g., California v. Carney, 471 U.S. 386, 394-95 (1985) (recognizing the need for probable cause to search a vehicle under the automobile exception); Payton v. New York, 445 U.S. 573, 620 (1980) (White, J., dissenting) (conceding that probable cause to arrest and probable cause to believe that a felon is in a home are both necessary for a home entry to effect an arrest); United States v. Watson, 423 U.S. 411, 421-23 (1976) (acknowledging that probable cause is necessary for a public arrest). Nonetheless, he was quite receptive to contentions that a particular search or seizure could be reasonable without the fullest measure of constitutional justification. 210 Bell v. Wolfish, 441 U.S. 520, 559 (1979). 211 Chandler, 520 U.S. at 325 (Rehnquist, J., dissenting); see also United States v. Knights, 534 U.S. 112, 118-19 (2001); Maryland v. Wilson, 519 U.S. 408, 411 (1997); Graham v. Connor, 490 U.S. 386, 396 (1989).
205 206
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for objective inquiries that pay careful attention to the facts and circumstances of each particular case.212 William Rehnquist did not invent balancing analysis. He borrowed his preferred approach from Warren Court opinions.213 The Warren Court, however, believed that situations permitting assessments of reasonableness by judicial interest balancing were rare exceptions to the Framers norms.214 For the vast majority of searches and seizures, judges were not at liberty to suspend the constitutionally-prescribed probable cause and warrant demands based on their assessment of the weights in the scales. For William Rehnquist, the central command of reasonableness dictated balancing in every case. It was not an extraordinary mode of analysis, rarely invoked. Instead, it was the general rule, an approach required by the terms and nature of the Fourth Amendment.215
212 Graham, 490 U.S. at 396-97; see also United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (declaring that the reasonableness balance depends upon all of the circumstances surrounding the search or seizure). 213 In two major rulings in successive years toward the end of Earl Warrens service as Chief JusticeCamara v. Mun. Ct. of San Francisco, 387 U.S. 523 (1967), and Terry v. Ohio, 392 U.S. 1 (1968)majorities grounded their holdings in a balancing analysis, recognizing that it was the assumption underlying the Fourth Amendment reasonableness requirement. See Terry, 392 U.S. at 20-27; Camara, 387 U.S. at 536-40. The Warren Court was willing to suspend Fourth Amendment norms and engage in a balancing analysis only because of the unique practices at issue in those cases. It was an extraordinary approach for infrequent, extraordinary search and seizure situations. 214 The Warren Court ended soon after Terry and Camara. Two later opinions that capture its attitude toward balancing analysis are Dunaway v. New York, 442 U.S. 200, 210-14 (1979) (emphasizing that the balancing analysis was employed in Terry because of the substantially less intrusive character of the searches and seizures at issue, suggesting that widespread balancing could lead to the disappear[ance] of the Fourth Amendments core protections, and affirming the centrality of the Framers probable cause standard), and Arizona v. Hicks, 480 U.S. 321, 327-29 (1987) (holding balancing inappropriate to determine the reasonableness of the search and seizure involved in moving a turntable to inspect its serial number and adher[ing], instead, to the textual and traditional standard of probable cause). 215 I am hardly the first to identify Rehnquists preferred approach to Fourth Amendment interpretation. It has been thoroughly documented, analyzed, and critiqued by others, who have pointed out that this was his method for correcting a perceived imbalance between law enforcement authority and civil liberties resulting from Warren Court norms. See Bradley, supra note 17, at 294; Thomas Y. Davies, Denying a Right by Disregarding Doctrine: How Illinois v. Rodriguez Demeans Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 TENN. L. REV. 1, 55 (1991); William W. Greenhalgh & Mark J. Yost, In Defense of the Per Se Rule: Justice Stewarts Struggle to Preserve the Fourth
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Interest balancing led Rehnquist to deem various sorts of searches and seizures reasonable, despite the absence of both a warrant and probable cause. He often found the alternative, lesser showing of a reasonable suspicion216 adequate to justify official intrusions on privacy, property, or liberty.217 Perhaps even more significant were the several occasions when balancing led him to approve random searches or seizuresi.e., those not supported by any individualized showing of suspicion. No Justice was more favorably inclined toward suspicionless searches or seizures.218
Amendments Warrant Clause, 31 AM. CRIM. L. REV. 1013, 1092 (1994); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 205 (1993); McClurg, supra note 8, at 812-13. The open-ended, flexible reasonableness analysis based on assessments of the totality of objective facts was capable of restoring to the custodians of law and order legitimate authority they had been denied. See Davies, supra, at 57, 98 (observing that the government usually wins under the generalized reasonableness approach and it was highly prized by the Rehnquist Court because the possibilities for justifying searches [were] greatly expanded); Greenhalgh and Yost, supra at 1092 (arguing that the balancing methodology . . . preferred . . . [by] Chief Justice Rehnquist . . . recognizes societys interest in apprehending and convicting the criminal but ignores societys interest in protecting privacy). 216 Reasonable suspicion is the phrase that has evolved to describe the showing less than probable cause that justifies the less intrusive searches and seizures authorized by Terry v. Ohio. According to Chief Justice Rehnquist, it is considerably less than proof of wrongdoing by a preponderance. . . . [P]robable cause means a fair probability that contraband or evidence of a crime will be found, . . . and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also Alabama v. White, 496 U.S. 325, 330-31 (1990) (describing the quantitative and qualitative ways in which reasonable suspicion is a less demanding standard). 217 For Rehnquist opinions, see United States v. Arvizu, 534 U.S. 266 (2002); United States v. Knights, 534 U.S. 112 (2001); Illinois v. Wardlow, 528 U.S. 119 (2000); Sokolow, 490 U.S. 1; United States v. Montoya de Hernandez, 473 U.S. 531 (1985); Florida v. Royer, 460 U.S. 491, 519 (1983) (Rehnquist, J., dissenting); Adams v. Williams, 407 U.S. 143 (1972). For other opinions Rehnquist joined, see Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004); Alabama v. White, 496 U.S. 325 (1990); Maryland v. Buie, 494 U.S. 325 (1990); Arizona v. Hicks, 480 U.S. 321, 333 (1987) (OConnor, J., dissenting); United States v. Sharpe, 470 U.S. 675 (1985); United States v. Hensley, 469 U.S. 221 (1985); New Jersey v. T.L.O., 469 U.S. 325 (1985); Michigan v. Long, 463 U.S. 1032 (1983); United States v. Place, 462 U.S. 696 (1983). 218 As will be seen, Rehnquist never disagreed with a decision to sustain a random search or seizure, and more than once he dissented from majority decisions holding a suspicionless search or seizure unreasonable. On a couple of occasions, he was alone in dissent. See Chandler v. Miller, 520 U.S. 305, 323 (1997) (Rehnquist, J., dissenting); Delaware v. Prouse, 440 U.S. 648, 664 (1979) (Rehnquist, J., dissenting).
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Rehnquist authored two groundbreaking opinions upholding suspicionless stopsMichigan Department of State Police v. Sitz219 and United States v. Villamonte-Marquez220and voted to uphold suspicionless seizures in nearly every other case the Court decided.221 During the Rehnquist years, the Court sustained some and rejected other suspicionless searches pursuant to random drug testing programs.222 If Rehnquists views had prevailed, every program would have been deemed reasonable based on interest balancing.223 Moreover, he was favorably disposed toward other types of suspicionless searchesi.e., invasions of privacy without any specific indicia of a particular individuals involvement in criminal activity.224 In Rehnquists view, judicial interest balancing was justified in the random search context by merely a proper governmental purpose other than law enforcement.225 An especially important objective was not
496 U.S. 444 (1990). 462 U.S. 579 (1983). 221 See Illinois v. Lidster, 540 U.S. 419, 428 (2004); City of Indianapolis v. Edmond, 531 U.S. 32, 48-56 (2000) (Rehnquist, J., dissenting); Prouse, 440 U.S. at 664 (Rehnquist, J., dissenting); United States v. Martinez-Fuerte, 428 U.S. 543 (1976). In United States v. Brignoni-Ponce, 422 U.S. 873, 887 (1975) (Rehnquist, J., concurring), Rehnquist concurred with a conclusion that suspicionless seizures of motorists by roving border patrols were unconstitutional. 222 For opinions sustaining the searches, see Bd. of Educ. v. Earls, 536 U.S. 822 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); Natl. Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Ry. Labor Execs. Assn, 489 U.S. 602 (1989). For opinions holding the searches unconstitutional, see Ferguson v. City of Charleston, 532 U.S. 67 (2001); Chandler v. Miller, 520 U.S. 305 (1997). 223 He joined Justice Scalias dissent in Ferguson, 532 U.S. at 91 (Scalia, J., dissenting); and authored his own dissent in Chandler, 520 U.S. at 323 (Rehnquist, J., dissenting). See David E. Steinberg, High School Drug Testing and the Original Understanding of the Fourth Amendment, 30 HASTINGS CONST. L.Q. 263, 289-90 (2003) (observing that Rehnquist never has seen a random drug testing program that he didnt like). 224 See, e.g., United States v. Flores-Montano, 541 U.S. 149, 155-56 (2004) (border search of vehicle); Hudson v. Palmer, 468 U.S. 517, 536-37 (1984) (prison cell search); Ybarra v. Illinois, 444 U.S. 85, 110 (1979) (Rehnquist, J., dissenting) (patdown of bar patron during search of bar); Bell v. Wolfish, 441 U.S. 520 (1979) (visual body cavity searches of inmates); United States v. Ortiz; 422 U.S. 891, 898-99 (1975) (Rehnquist, J., concurring) (search at traffic checkpoint); Almeida-Sanchez v. United States, 413 U.S. 266, 299 (1973) (White, J., dissenting) (roving border patrol search); see also United States v. Knights, 534 U.S. 112, 120 n.6 (2001) (suggesting searches of probationers homes might be permissible without any suspicion). 225 Chandler, 520 US. at 325.
219 220
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necessary.226 Furthermore, for suspicionless seizures, he found balancing analysis to be appropriate even if officials could not demonstrate a special . . . need beyond the normal need for criminal law enforcement.227 In Rehnquists hands and with his support, interest balancing proved to be a tool for considerable expansion of the authority to search and seize without any justification particular to the person whose privacy or liberty was infringed upon. For the random searches and seizures that came before the Court during his tenure, Rehnquists preferred method of construing the Constitution was a most effective means of ensuring a more lawenforcement-friendly Fourth Amendment.
E. The Rehnquist Style: The Process, Methods, Tactics, and Strategy Used to Right the Fourth Amendment Ship
Prior sections have addressed the substance of Rehnquists Fourth Amendmentthe presumptions, premises, and principles he rejected and the interpretive approach he preferred. This section discusses the methods he employed to implement his views, the distinctive elements of his judicial style. William Rehnquist could not have known that he would have the luxury of more than three decades to pursue his goals. Retrospectively, however, it seems as if he might have bet on having the time necessary to remedy perceived Fourth Amendment imbalances. Early on, he made efforts to achieve swift and sweeping victories, by challenging the legitimacy and foundations of the warrant requirement and exclusionary rule.228 He seemed to realize, however, that such revolutionary changes were not likely to happen overnight. Instead of insistently beating those drums, he settled in for a steady war of attrition characterized by consistency and patience.229 He played the hand
Id. Mich. Dept of State Police v. Sitz, 496 U.S. 444, 450 (1990); see also City of Indianapolis v. Edmond, 531 U.S. 32, 53-55 (Rehnquist, J., dissenting) (asserting that special needs are not necessary for roadblock seizures to be reasonable). 228 See infra text accompanying notes 133-39 & 144-55 (discussing Rehnquists criticisms of the warrant rule and assaults on the exclusionary rule). 229 I believe that 1981, five years before he became Chief Justice and twenty-four years before he left the Court, was the last year in which Rehnquist challenged the
226 227
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he was dealt artfully, exploiting opportunities to erode, qualify, or recharacterize Warren Court rulings, thereby confining them within ever-tighter borders that left no room for growth. He sought to modify underlying premises in ways that would afford future opportunities to trim Fourth Amendment excesses. When the votes materialized, he took advantage of malleable doctrines to achieve his ends. He highlighted the limits of rulings with the potential for expansive interpretation, striving to contain any damage. For thirty-three years, William Rehnquist patiently, consistently, and confidently kept the pressure on, never flagging in his quest to restore to the forces of law and order the constitutional authority he saw as their entitlement. A striking facet of the large catalogue of Rehnquist opinions is how often he sought to lay foundations for future reform. He was a judicial Johnny Appleseed, who used majority, concurring, and dissenting opportunities to plant ideas that might later germinate and bear fruit. His very first opinion illustrates the tactic. In Terry v. Ohio, Chief Justice Warren had carefully and deliberately refused to resolve the question of whether investigative stops for questioning are permissible on less than probable cause when officers have no grounds to believe that a suspect is armed and dangerous.230 New Justice Rehnquists majority opinion in Adams v. Williams contains a foundation for an affirmative answer to that very significant question.231 He indicated that suspects could be detained for appropriate investigation in the absence of any threat of violence232a position that would later become an accepted expansion of law enforcement authority.233
legitimacy of the warrant requirement and lobbied for the abolition of the exclusionary rule. See supra notes 134 & 156. 230 392 U.S. 1, 20 n.16 (1968) (specifically reserving the question); id. at 30 (characterizing the holding as merely that a stop and frisk are allowed when officers reasonably . . . conclude that a person is involved in criminal activity and is armed and presently dangerous). 231 It bears mention that the issue did not have to be confronted in Adams. The officer had a reasonable suspicion that the suspect was involved in criminal activity and was armed and dangerous. See Adams v. Williams, 407 U.S. 143, 147-48 (1972). 232 See id. at 146. 233 See Illinois v. Wardlow, 528 U.S. 119, 123, 125 (2000) (asserting that Terry held that brief investigative seizures are allowed on reasonable suspicion of criminal
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Other examples abound. Rehnquist sowed the seeds for holdings that would allow officers substantial room to interact with suspects without triggering any Fourth Amendment regulation. Before a majority held that officers could ask questions and request identification without reasonable suspicion,234 Rehnquist ventured that view.235 Moreover, he laid foundations for the Courts position that seizures do not depend on officers subjective intentions, but only on the objective impact of their actions on a reasonable suspect.236 Prior to the holding in Whren v. United States that probable cause is determined objectively,237 Rehnquist more than once rejected inquiries into officers subjective motivations in resolving most Fourth Amendment issues.238 His Florida v. Royer dissent contains a number of reflections upon the reasonable suspicion criterion. He suggested, for example, that a combination of several innocent circumstances could be suspicious in the totality, that even though drug courier profiles do not provide mathematical formula[s] for assessing reasonable suspicion the presence of factors in a profile does not diminish their value, and that officer training and experience must be considered.239 All of these principles would later blossom in a majority opinion he authored.240
activity and concluding that a stop was justified because the officer had such a suspicion). 234 See Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (stating that even with no suspicion officers may ask questions and request identification because no seizure occurs). 235 See I.N.S. v. Delgado, 466 U.S. 210, 216 (1984) (suggesting that neither questioning nor a request for identification constitutes a seizure). 236 See Dunaway v. New York, 442 U.S. 200, 224 (1979) (Rehnquist, J., dissenting) (opining that unexpressed intentions of police officers . . . have little bearing on . . . whether the police conduct, objectively viewed, restrained [a persons] liberty by show of force or authority). The Courts position is clear from its formulation of the controlling objective standard. The test is whether police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Bostick, 501 U.S. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). 237 517 U.S. 806 (1996). 238 See Graham v. Connor, 490 U.S. 386, 397-99 (1989); Scott v. United States, 436 U.S. 128, 137-38 (1978); United States v. Robinson, 414 U.S. 218, 236 (1973). 239 See Florida v. Royer, 460 U.S. 491, 525, 525 n.6 (1983) (Rehnquist, J., dissenting). 240 See United States v. Sokolow, 490 U.S. 1, 9-10 (1989).
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Rehnquist made similar efforts to undermine and weaken the search warrant requirement. His early majority opinion in Cady v. Dombrowski,241 although very fact specific, would prove foundational for the Courts adoption of a more generic inventory search exception.242 His dissent in Robbins v. California,243 contained seeds of the later expansions of the automobile exception to include virtually all vehicles and all containers found in vehicles.244 His majority opinion in Texas v. Brown245 contains a predicate for the Courts ultimate rejection of the inadvertence limitation on the plain view doctrine.246 Perhaps his best efforts were devoted to sapping the strength of his chief nemesisthe exclusionary rule. Rehnquist opinions contain seeds of the good-faith exceptions that would later garner majority support.247 Premises relied upon in concluding that the exclusionary rule is not applicable to knock-and-announce violations248 have roots in his opinions.249 Most significantly, the
413 U.S. 433 (1973). See South Dakota v. Opperman, 428 U.S. 364 (1976). 243 453 U.S. 420, 439-43 (1981) (Rehnquist, J., dissenting) (suggesting both that automobiles should be treated as a class because they are inherently mobile and that all containers inside automobiles should be subject to search under the automobile exception). 244 See Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (confirming that all readily mobile vehicles are subject to warrantless searches under the automobile exception without a specific showing of exigent circumstances); California v. Acevedo, 500 U.S. 565, 580 (1991) (holding that all containers in vehicles are subject to warrantless searches based on probable cause under the automobile exception); California v. Carney, 471 U.S. 386, 393-94 (1985) (concluding that readily mobile vehicles in use for transportation are within the scope of the automobile exception). 245 460 U.S. 730, 743 (1983) (indicating that the inadvertence criterion for the plain view doctrine may not endure). 246 See Horton v. California, 496 U.S. 128, 130 (1990) (abolishing the inadvertence requirement). 247 See California v. Minjares, 443 U.S. 916, 918-19 (1979) (Rehnquist, J., dissenting from denial of stay); Dunaway v. New York, 442 U.S. 200, 226-27 (1979) (Rehnquist, J., dissenting); United States v. Peltier, 422 U.S. 531, 536-37 (1975). 248 See Hudson v. Michigan, 547 U.S. 586, 601-02 (2006). 249 See United States v. Ramirez, 523 U.S. 65, 72 n.3 (1998) (raising the issue of whether a sufficient causal connection exists between an illegal method of entry and the discovery of evidence in a home); Minjares, 443 U.S. at 923-28 (Rehnquist, J., dissenting from denial of stay) (suggesting that changes since Mapp justified reassessment and abolition); Rakas v. Illinois, 439 U.S. 128, 134 (1978) (observing that civil remedies were available for those who have suffered Fourth Amendment deprivations).
241 242
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culpability threshold for exclusion endorsed in powerful dicta in the Courts two most recent exclusionary rule opinions250 can be traced to earlier Rehnquist reflections upon the significance of official blameworthiness.251 In sum, an integral part of the Rehnquist strategy was to sketch blueprints for later pro-law enforcement projects. Not every effort was successful, but a number of them yielded the results he desired.252 The carefully sown seeds produced a bumper crop of authority to preserve law and order. Among misimpressions that were corrected by this research was my belief that William Rehnquist was a staunch advocate of bright Fourth Amendment lines that furnished officers both clear guidance and overbroad authority to search and seize. I thought he was strongly predisposed toward rulings of that nature. In fact, in his first Fourth Amendment opinion, Rehnquist observed that [o]ne simple rule could not suffice to determine whether a stop and frisk based on informant hearsay was reasonable, announcing that constitutionality turned on whether officers had enough indicia of reliability.253 Later, after he became Chief, he rejected a state courts per se rule that overprotected Fourth Amendment rights, branding it unrealistic.254 According to the Chief Justice, the Court had consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.255 When he could muster a majority to support a pro-law
250 See Davis v. United States, 131 S. Ct. 2419, 2427-28 (2011); Herring v. United States, 555 U.S. 135, 143-44 (2009). 251 See Minjares, 443 U.S. at 918-19, 925 (Rehnquist, J., dissenting from denial of stay); Scott v. United States, 436 U.S. 128, 139 n.13 (1978); Peltier, 422 U.S. at 542. 252 Thornton v. United States is an example of an unsuccessful effort. In his majority opinion, Rehnquist strove to prevent foreseeable damage to the expansive authority to search vehicles incident to arrests of recent occupants, suggesting that individualized assessments of access were unworkable and describing broad, unqualified power to search passenger compartments as established constitutional precedent. See Thornton v. United States, 541 U.S. 615, 623 n.3, 624 n.4 (2004). After he left the Court, a majority departed from that established precedent and opted for the unworkable option Rehnquist feared. See Arizona v. Gant, 556 U.S. 332 (2009), discussed infra text accompanying notes 317-26. 253 Adams v. Williams, 407 U.S. 143, 147 (1972). 254 See Ohio v. Robinette, 519 U.S. 33, 39-40 (1996). 255 Id. at 39. In Robbins v. California, 453 U.S. 420, 443 (1981) (Rehnquist, J., dissenting), Justice Rehnquist averred that he favored a bright line but bemoaned the
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enforcement bright line, he eagerly endorsed it, citing the vital need for guidance.256 Nonetheless, Rehnquist opinions favoring bright-line standards are a distinct minority. More typically, his opinions promote amorphous, totality-type standards that provide little clarity for future decisions by officers or judges. Rakas v. Illinois257 and Illinois v. Gates258arguably his two most significant Fourth Amendment opinionsare the antitheses of bright-line decisions. Rakas rejected a relatively clear approach to standing determinationsan approach that led to more frequent invocation of the exclusionary rule. He supplanted it with a much more indeterminate legitimate expectation of privacy standard that hinges on all the facts.259 Gates abandoned a more structured, two-pronged, three-stage doctrine for analyzing hearsay-based probable cause showings, replacing it with a totality-of-the-circumstances approach.260 According to Justice Rehnquist, rigid rules were simply not appropriate for fluid,
fact that the training of the legal profession to attack bright lines is likely to produce blurry impressionistic pattern[s] instead. 256 United States v. Robinson , 414 U.S. 218 (1973), is an early and noteworthy example, and probably the reason for my mistaken impression. In Robinson, Justice Rehnquist, in just his second year on the Court, emphasized the importance of clear Fourth Amendment guidance and found it reasonable for officers to thoroughly search every arrestee and every belonging on his or her person incident to a lawful arrest. See id. at 235-36. Other opinions prescribing bright-line approaches include: Thornton v. United States, 541 U.S. 615, 623-24 (2004); Maryland v. Wilson, 519 U.S. 408, 413-15, 413 n.1 (1997); Colorado v. Bertine, 479 U.S. 367, 375 (1987); and United States v. Ramsey, 431 U.S. 606, 619-22 (1977). Rehnquist also stressed the necessity for brightline guidance in California v. Minjares, 443 U.S. 916, 927 (1979) (Rehnquist, J., dissenting from denial of stay) (There is no question that the police are badly in need of rules that may be relatively easily understood in carrying out their work of apprehending and assisting in convicting those guilty of conduct made criminal by the legislature.). 257 439 U.S. 128 (1978). 258 462 U.S. 213 (1983). 259 See Rakas, 439 U.S. at 143, 148-49; see also John M. Junker, The Structure of the Fourth Amendment: The Scope of the Protection, 79 J. CRIM. L. & CRIMINOLOGY 1105, 1175 (1989) (stating that Rakas made the test for standing . . . far more abstract, and thus more malleable by adopting a dim line test). In Minnesota v. Carter, the Chief Justice tried to prescribe the same fact-specific, case-by-case approach to standing for guests in homes, but Justice Kennedys concurring view that almost all social guests have privacy interests in homes thwarted success and resulted in a much brighter line. See supra note 180. 260 Gates, 462 U.S. at 238.
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common-sense probable cause assessments.261 Other Rehnquist opinions endorsed similar approaches, prescribing standards that demanded case-by-case, fact-intensive assessments and provided minimal guidance for officers and judges decisions.262 In some opinions, he took a hybrid approach, prescribing both bright-line rules for some issues and not-so-bright-line approaches for others.263 The bottom line is that William Rehnquists attitude toward bright-line doctrines is consistent with his substantive understanding of the Fourth Amendment. He favored pro-law enforcement bright lines when they were feasible and struck an appropriate balance. However, sharper Fourth Amendment rules that yielded both clearer guidance and more expansive rightsat the expense of law and orderwere unacceptable. Instead, he chose more flexible totality doctrines that interfered less with law enforcement efficacy.264 Rehnquists opinions had a relatively distinctive flavor. Compared to those of other Justices, they tend to be briefer, more concise and to the point.265 He ordinarily said little more than he
Id. at 232, 239. See, e.g., Muehler v. Mena, 544 U.S. 93, 99-100 (2005); Illinois v. Wardlow, 528 U.S. 119, 123-25 (2000); Florida v. Jimeno, 500 U.S. 248, 250-52 (1991); Florida v. Wells, 495 U.S. 1, 4 (1990); United States v. Montoya De Hernandez, 473 U.S. 531, 542-44 (1985). 263 Muehler v. Mena and Colorado v. Bertine, 479 U.S. 367 (1987), fall into this category. Mena offers clear guidance for detentions of occupants, see 544 U.S. at 98, but also prescribes a case-specific balancing test to determine the use of force that is reasonable during such a detention. See id. at 99-100. Bertine holds that officers may always search all containers in cars during inventory searches, see 479 U.S. at 374-75, but offers only a vague standard criteria standard for determining whether discretion to impound a vehicle is appropriate. See id. at 375. 264 See George M. Dery III, When Will This Traffic Stop End?: The United States Supreme Courts Dodge of Every Detained Motorists Central Concern -Ohio v. Robinette, 25 FLA. ST. U. L. REV. 519, 546 (1998) (stating that Rehnquist in one term . . . in two opinions . . . took diametrically opposed approaches toward the appropriateness of the use of bright lines in Fourth Amendment litigation). 265 See Edwin J. Butterfoss & Mary Sue B. Snyder, Be My Guest: The Hidden Holding of Minnesota v. Carter, 22 HAMLINE L. REV. 501, 502 (1999) (describing Rehnquists majority opinion as short in length and short on analysis and as offer[ing] little guidance for future cases); George M. Dery III, Sanctioning Thousands Upon Thousands of Petty Indignities: The Supreme Courts Creation of a Constitutional Free Zone for Police Seizures of Innocent Passengers in Maryland v. Wilson, 54 WASH. & LEE L. REV. 1419, 1447 (1997) (referring to Rehnquists laconic style). For opinions which illustrate Rehnquists tendency to be brief, see Thornton v.
261 262
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needed to say to achieve his objectives.266 Some efforts are so terse, so unembellished as to be cryptic.267 His lengthier works tend to be majority opinions for a closely divided Court. The abnormal length is probably attributable to the need to satisfy all members of a fragile majority.268 Rehnquists brevity seems consistent with his frugal nature.269 There was no reason to waste time or effort with more words than were needed to resolve an issueexcept when he found an opportunity to plant seeds for future developments. There might have been other, more strategic reasons. The less said by way of reasoning or justification, the smaller the target for critics. Moreover, Rehnquist surely understood how precedents might be manipulated by future Justices to achieve objectives inconsistent with his views. After all, he had put two 1960s landmarksKatz and Terryto very good service in his effort to right Warren Court imbalances.270 He may have wanted to minimize the potential ammunition for successors who held different visions. Finally, the less said in support of a decision, the greater the maneuver room in future opinions. As in evidence law, prior statements can produce problematic contradictions down the road. Justice William Rehnquist may well have recognized that he could not know what questions might land on the Courts doorstep. Briefer opinions kept more options open and could avoid the need to find a way out of a logical tangle of his own creation.
United States, 541 U.S. 615 (2004); Bond v. United States, 529 U.S. 334 (2000); Knowles v. Iowa, 525 U.S. 113 (1998); Jimeno, 500 U.S. 248; Mich. Dept. of State Police v. Sitz, 496 U.S. 444 (1990); and Adams v. Williams, 407 U.S. 143 (1972). 266 Although he would write more than was necessary when he thought it was appropriate to venture some pro-law enforcement position that he saw as suitable for future adoption by the Court. See supra text accompanying notes 222-52. 267 See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (generating unclarity about what constitutes unprovoked flight and whether unprovoked flight in a high crime area always constitutes reasonable suspicion of criminal activity); Wells, 495 U.S. at 4 (announcing a somewhat indecipherable standard for the types and degree of discretion officers may exercise under a constitutionally valid inventory policy). 268 See, e.g., Illinois v. Gates, 462 U.S. 213 (1983); Rakas v. Illinois, 439 U.S. 128 (1978). 269 OBERMAYER, supra note 8, at 137 (calling frugality one of his most basic character traits). 270 See supra text accompanying notes 93-97, 213-15.
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F. A Brief Assessment of William Rehnquists Influence on Fourth Amendment Law

This final section is a less than comprehensive effort to assess the Chief Justices influence on the contours of Fourth Amendment law. One cannot be certain about the full extent of a particular Justices impacts. Much of the Courts work happens out of the public eye and some effects are untraceable. This evaluation is based on whether (and how much) the Courts approaches to and outcomes on Fourth Amendment issues moved in the direction of William Rehnquists views during his service, and on the extent to which post-2005 rulings comport with his attitudes and understanding of that guarantee.
1. Fourth Amendment Trends from 1972-2005: Steady Rehnquistian Movement

During Rehnquists more than three decades as a Justice, the reasonable expectation of privacy doctrine came to control the threshold search question.271 Only rarely did that standard lead to a conclusion that contested conduct did constitute a search.272 Majorities generally reached results consistent with Rehnquists opposition to Fourth Amendment expansion.273 Regarding the threshold seizure question, he was one of only two Justices to explicitly endorse the Mendenhall standardwhether a reasonable person would feel free to leavewhen it first appeared.274 Before long, a majority adopted that doctrine275 and
271 See Smith v. Maryland, 442 U.S. 735, 739 (1979) (declaring that the Katz reasonable expectation of privacy standard had become the Justices lodestar for determining whether a search had occurred). 272 I count five such opinions during Rehnquists tenure: Kyllo v. United States, 533 U.S. 27, 40 (2001); Bond v. United States, 529 U.S. 334, 338-39 (2000); Arizona v. Hicks, 480 U.S. 321, 324-25 (1987); United States v. Karo, 468 U.S. 705, 714-16 (1984); and Walter v. United States, 447 U.S. 649, 657-59 (1980). Rehnquist authored Bond and agreed with the search conclusion in Karo, but dissented in Kyllo, Hicks, and Walter. 273 The thirteen majority opinions in footnote 97, supra, all concluded that the government activities at issue were not searches. 274 See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (only Justice Rehnquist and the author, Justice Stewart, joined this part of the opinion). 275 See California v. Hodari D., 499 U.S. 621, 627-28 (1991) (asserting that a Court majority had adopted the test in Justice Rehnquists 1984 opinion in I.N.S. v. Delgado, 466 U.S. 210, 215 (1984)).
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then proceeded to interpret and apply it stingily, freeing an array of encounters from Fourth Amendment control.276 The Justices gravitated more and more toward the Rehnquist view that officers ought to have considerable room for preliminary investigatory interactions with individuals without having to justify their conduct. In both threshold domains, the balances struck favored law enforcement the vast majority of the time. With strong pushes from Rehnquist opinions, the probable cause norm became less demanding, easier to satisfy.277 Moreover, the standard became less normal as more and more official searches and seizures became justifiable on a less demanding showing. The varieties of conduct that could be reasonable on merely a reasonable suspicion increased,278 and the content of the reasonable suspicion standard proved relatively insubstantial.279 Moreover, although his colleagues were unwilling to accept as many suspicionless searches and seizures as Rehnquist would have liked, it was during his tenure that the Court first approved several random drug testing programs280 and two types of suspicionless roadblocks.281 The Court did not abandon the search warrant requirement, as Rehnquist would have preferred. In fact, a majority never questioned the status of the warrant requirement or suggested that exceptions were anything but few and well delineated. The reality, however, is that exceptions to the warrant demand increased significantly during Rehnquists tenureboth in number282 and in scope.283 While ostensibly adhering to the search
276 The five post-Mendenhall opinions in which the Court interpreted or applied the seizure standard narrowly are: United States v. Drayton, 536 U.S. 194, 203-06 (2002); Florida v. Bostick, 501 U.S. 429, 435-36, 439-40 (1991); Hodari D., 499 U.S. at 626-28; Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984); and Delgado, 466 U.S. at 215-21. 277 See Maryland v. Pringle, 540 U.S. 366, 372-73 (2003); Whren v. United States, 517 U.S. 806, 818-19 (1996); Illinois v. Gates, 462 U.S. 213, 245-46 (1983). 278 See supra note 217 for a list of majority opinions. 279 See Alabama v. White, 496 U.S. 325, 330-32 (1990); United States v. Sokolow, 490 U.S. 1, 9-10 (1989). 280 See supra note 222 and accompanying text. 281 The Court sustained a checkpoint for drunk drivers in Michigan Department of State Police v. Sitz, 496 U.S. 444, 455 (1990) and upheld a checkpoint seeking witnesses to a hit-and-run accident in Illinois v. Lidster, 540 U.S. 419, 428 (2004). 282 New exceptions include: (1) inventories of vehicles, see South Dakota v. Opperman, 428 U.S. 364 (1976); (2) inventories of arrestees, see Illinois v. Lafayette, 462 U.S. 640 (1983); (3) reasonable belief in consent authority, see Illinois v. Rodriguez,
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warrant rule, the Court deprived it of force, moving far down the path toward Rehnquists viewthat warrants are not essential for reasonableness. The Justices failed to grant the Chief Justices fondest wish outright abandonment of the exclusionary rule. As with the warrant rule, however, they demolished considerable parts of the edifice. The situations in which illegally obtained evidence could be introduced multiplied dramatically due to constriction of the standing requisite284 and growth in the number285 and breadth of the exceptions.286 The Court again followed Rehnquist quite a ways down the road he sought to travel, rendering suppression an ever-weaker impediment to criminal law enforcement. William Rehnquist did not single-handedly move the Court in his direction in each of these Fourth Amendment arenas. Without colleagues favorably inclined toward the balances he preferred, these developments would not have been possible.287 It seems
497 U.S. 177 (1990); (4) monitoring of arrestees, see Washington v. Chrisman, 455 U.S. 1 (1982); (5) weapons searches of vehicles, see Michigan v. Long, 463 U.S. 1032 (1983); (6) protective sweeps of homes, see Maryland v. Buie, 494 U.S. 325 (1990); and (7) school searches, see New Jersey, v. T.L.O., 469 U.S. 325 (1985). The drug testing searches approved by the Court also qualify as exceptions to the warrant rule. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995). 283 The already established exceptions whose scope increased significantly were: (1) the search incident to arrest exception, see Thornton v. United States, 541 U.S. 615 (2004); New York v. Belton, 453 U.S. 454 (1981); United States v. Robinson, 414 U.S. 218 (1973); and (2) the automobile exception, see Wyoming v. Houghton, 526 U.S. 295 (1999); California v. Acevedo, 500 U.S. 565 (1991); California v. Carney, 471 U.S. 386 (1985); Texas v. White, 423 U.S. 67 (1975). 284 See supra text accompanying notes 158-60. 285 Additional exceptions recognized during the Rehnquist years include: (1) three varieties of the good-faith exception, see Arizona v. Evans, 514 U.S. 1 (1995); Illinois v. Krull, 480 U.S. 340 (1987); United States v. Leon, 468 U.S. 897 (1984); (2) the inevitable discovery exception, see Nix v. Williams, 467 U.S. 431 (1984) (holding the exception valid in Sixth Amendment cases, but using deterrent logic that makes it clearly applicable to Fourth Amendment suppression claims); and (3) the bars to raising exclusionary rule claims in various sorts of proceedings, see Pa. Bd. of Prob. v. Scott, 524 U.S. 357 (1998); Stone v. Powell, 428 U.S. 465 (1976) (habeas corpus proceedings); United States v. Janis, 428 U.S. 433 (1976); United States v. Calandra, 414 U.S. 338 (1974) (grand jury proceedings). 286 The following exceptions were expanded: (1) independent source, see Murray v. United States, 487 U.S. 533 (1988); (2) attenuation, see United States v. Ceccolini, 435 U.S. 268 (1978); and (3) impeachment use, see United States v. Havens, 446 U.S. 620 (1980). 287 While he served, Rehnquist had the good fortune of appointments that maintained a majority that was generally favorably inclined toward his conception of
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likely, nonetheless, that his unflinching consistency over a very long time exerted powerful influence on the Fourth Amendments direction. He lost battles, but ultimately his war of attrition was an enormous success. By its end, the law and orders troops had reclaimed considerable amounts of constitutional turf.
2. The Course of Fourth Amendment Jurisprudence Since 2005: WWWRT?288

The substantial movement of Fourth Amendment doctrine toward Rehnquistian positions would surely distress Earl Warren. Warrens reactions to the fate of Fourth Amendment law since his 1969 departure could only be displeasure at the empowerment of law enforcement and the losses of civil liberties. He was part of a majority committed to generous protection against unreasonable searches and seizures. The safeguards that developed during his tenure comported with his understanding of that guarantee. Today, forty years after William Rehnquist became an Associate Justice, a return to the Warren Courts Fourth Amendment balance is quite unimaginable. William Rehnquist would not be sanguine about every Fourth Amendment ruling since 2005. In fact, he would be quite dissatisfied with some and not entirely thrilled with others. The totality, however, could not disappoint him. The seven years since his death suggest that his influence is still alive and well and that it will continue to shape the course of search and seizure law. Moreover, although it is possible that he would have used persuasive powers to change an outcome, based purely on the votes of Chief Justice Roberts, not a single result has been different than it would have been if Rehnquist had remained.289
the Fourth Amendment balance. These appointments included Justices OConnor, Scalia, Kennedy, and Thomas, all of whom were still on the Court at the time of his death. 288 What Would William Rehnquist Think. 289 By my count, the Court averaged more than six Fourth Amendment rulings per year between 1972 and 2005. See supra text accompanying note 26 (stating that the Court ruled in 207 Fourth Amendment cases during that span). In the seven terms since John Roberts became Chief Justice, there have been twenty Fourth Amendment decisions, or roughly three per yearless than half the average number during the preceding thirty-three years.
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Since 2005, the Court has resolved one significant case concerning the search threshold and one involving the seizure threshold. In both, the Justices unanimously found that the Fourth Amendment regulated the governments activity. In United States v. Jones,290 decided during the most recent term, all agreed that installing a GPS device on a vehicle and using it to track publicly visible movements for twenty-eight days was a search.291 It is unclear whether Chief Justice Rehnquist would have agreed.292 Read broadly, his opinion in Knotts could support a contrary outcome. Therein, he denied reasonable expectations of privacy in public travels voluntarily conveyed to ordinary senses, indicating that the exploitation of technology to accomplish what could have been accomplished with naked eyes does not trigger Fourth Amendment scrutiny.293 Moreover, Jones imposes a considerable restriction on law enforcement authority to employ a productive investigative tool. On the other hand, in Knotts, Rehnquist did suggest that dragnet type technology-aided monitoring of exposed travels might trigger Fourth Amendment scrutiny.294 A Rehnquist dissent in Jones would have rejected some potentially expansive (and surprising) premises in the majority opinionspecifically, that Katz does not provide the exclusive standard for whether a search has occurred and that a minor physical trespass on an effect for the purpose of gathering information followed by any information gathering at all constitutes a search.295 He would have agreed with the concurring Justices that the property invasion involved in installing a GPS device is constitutionally trivial and that Knotts governs all short-
132 S. Ct. 945 (2012). See id. at 949 (majority opinion); id. at 964 (Alito, J., concurring in the judgment). 292 Although it was not unknown for him to be the odd Justice out in 8-1 Fourth Amendment rulings, that happened a mere four times in thirty-three years and only once after he became Chief. See Chandler v. Miller, 520 U.S. 305, 323 (1997) (Rehnquist, J., dissenting); Reid v. Georgia, 448 U.S. 438, 442 (1980) (Rehnquist, J., dissenting); Delaware v. Prouse, 440 U.S. 648, 664 (1979) (Rehnquist, J., dissenting); Michigan v. Tyler, 436 U.S. 499, 516 (1978) (Rehnquist, J., dissenting). 293 See supra notes 193-96 and accompanying text. 294 United States v. Knotts, 460 U.S. 276, 284 (1983). 295 See Jones, 132 S. Ct. at 950-51.
290 291
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term tracking after installation.296 On the other hand, a Rehnquist dissent would have also rejected the concurrers view that longterm monitoring of publicly visible movementsat least for some offensesintrudes on protected privacy interests.297 If, like his successor, Rehnquist had decided to go along with the majority ruling in Jones, it is uncertain whether he would have cast his lot with the Scalia-led majority, joined the Alito-led concurrence, or blazed his own trail. The majoritys refusal to address long-term nontrespassory GPS monitoring would have been appealing to his conservativism.298 On the other hand, the concurring Justices inclination to leave all short-term monitoring unregulated, their conclusions that only long-term surveillance is of constitutional concern, and their suggestion that even long-term tracking may be unconstrained for certain extraordinary offenses299 would have been attractive because they preserved considerable authority to exploit GPS technology without justification. Rehnquist would also have been pleased that the Court did not declare that regulated GPS monitoring requires a search warrant.300 He definitely would have been displeased with Joness implications for the future of GPS tracking. Five Justices held that short-term monitoring following a trespass is a search,301 and a different five indicated that long-term monitoring without trespass is a search.302 If no Justice changes his or her
See id. at 961, 964. See id. at 964. 298 Id. at 954. Rehnquist would have been pleased by the majoritys announcement that even extensive visual observation without technological assistance is constitutionally permissible, id. at 953-54, and by its care in conceding only that achievement of the same result through electronic means might invade privacy. Id. at 954. 299 See id. at 964. 300 It is arguable, of course, that the warrant presumption governs once an activity qualifies as a search. Nonetheless, there is an unavoidable contrast between Justice Scalias opinion in Jones, which declined to address the justification needed to render GPS installation and tracking reasonable, see id. at 954, and his opinion in Kyllo v. United States, 533 U.S. 27, 40 (2001), which announced that a warrant is presumptively required for thermal imaging of homes. One can plausibly argue that there are reasons to suspend the warrant safeguard in the contexts Jones addresses. 301 See Jones, 132 S. Ct. at 949 (majority opinion). 302 See id. at 964 (Alito, J., concurring in the judgment); id. at 955 (Sotomayor, J., concurring).
296 297
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mind, only short-term, non-trespassory tracking will be ungoverned by the reasonableness demand.303 In Brendlin v. California, the Justices unanimously ruled that all passengers in vehicles are seized when officers pull a driver over.304 Applying well-established doctrine, the Court concluded that reasonable passengers would not feel free to leave when officers have signaled for a vehicle to stop and that passengers submit by not leaving.305 Although it seems less likely, Rehnquist again might have refused to join this ruling. He strongly and consistently favored rulings according law enforcers opportunities for unregulated interaction with people, more than once taking a distinctly minority position that an individual had not been seized.306 He might have hesitated to deprive officers of fortuitously discovered evidence of passengers criminality.307 On the other hand, in Maryland v. Wilson,308 Rehnquists opinion allowing officers to force passengers to alight from stopped vehicles did rest on the premise that a seizure had already occurred. He reasoned that passengers were already stopped by virtue of the stop of the vehicle and focused on the modest additional intrusion involved in removing them from the vehicle.309 Moreover, the Brendlin Court relied on a quite defensible interpretation of the two doctrinal requisites for
303 The Roberts Court has decided one other relatively insignificant case involving whether government conduct constituted a search. See City of Ontario v. Quon, 130 S. Ct. 2619 (2010). The Court avoided resolution of the threshold question, assuming that a citys review of text messages sent by a police officer on a city -issued pager did intrude on a reasonable expectation of privacy. See id. at 2630. The Justices then concluded that the search was reasonable under any appropriate analysis. See id. at 2633. Rehnquist would not have favored the Courts citation of the search warrant rule. See id. at 2630. Although he would have preferred interest balancing to the approach the Court employed, he would have agreed that the government acted reasonably. Moreover, he would have been delighted by the Courts negativity toward and rejection of a least intrusive alternative argument. See id. at 2632. 304 See 551 U.S. 249, 251 (2007). 305 Id. at 257, 262. 306 See Reid v. Georgia, 448 U.S. 438, 442 (1980) (Rehnquist, J., dissenting); United States v. Mendenhall, 446 U.S. 544, 554 (1980) (portion of opinion joined only by Stewart, J. & Rehnquist, J.); Dunaway v. New York, 442 U.S. 200, 221 (1979) (Rehnquist, J, dissenting). 307 In addition, Rehnquist evinced a distinct lack of concern for passengers Fourth Amendment interests in vehicles in Rakas v. Illinois, 439 U.S. 128, 150 (1978). 308 519 U.S. 408 (1997). 309 Id. at 414.
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seizures by shows of authority endorsed by every Justice. Finally, Rehnquist might have been willing to sign on because of two limits in the majority opinion. First, Justice Souter indicated that a different result might follow for passengers traveling by public transportationtaxis or busesinstead of privately-owned vehicles.310 More important, the majority did not hold that evidence found in an unlawfully stopped car must be suppressed at the request of an unlawfully seized passenger.311 The Court did not preclude a conclusion that the discovery of evidence in a vehicle may lack a sufficient causal link to the incidental seizure of a passenger and may, therefore, not be the fruit of a violation of the passengers rights. Rehnquist might have concluded that Brendlins limited Fourth Amendment protection for passengers liberty would have minimal negative impacts on police efficacy.312 The Court has decided one significant case addressing the meaning of probable causeUnited States v. Grubbs.313 The Justices unanimously held that the probable cause requirement does not render anticipatory warrants categorically unconstitutional because it requires only a fair probability that items subject to seizure will be on premises at the time a search is conducted.314 Rehnquists belief that probable cause should not pose inordinate obstacles to crime control efforts would surely have led him to approve. A conclusion that probable cause demands a showing that the objects sought are presently located in a place would have posed an irrational impediment to searches based on demonstrations that evidence or contraband will
See Brendlin, 551 U.S. at 262 n.6. See id. at 259, 263 (suggesting that passengers can exclude only evidence that is the fruit of the infringement upon their liberty and remanding for a state court determination of whether suppression turns on any other issue). 312 In light of the Roberts Courts exclusionary rule work, see infra text accompanying notes 407-26, exclusion is even less likely today than in 2005. The attitude toward exclusion evinced by recent decisions would almost certainly lead to a conclusion that the causal link between an incidental seizure of a passenger and the obtainment of evidence in a vehicle is ordinarily insufficient to justify exclusion. Civil liability remains a possible remedy, but a passenger is unlikely to find a civil suit for an unlawful detention in a vehicle worth the investment of time, money, and effort. The prospect of damages is unlikely to impede law enforcement activities. 313 547 U.S. 90 (2006). 314 See id. at 94-96. Rehnquist would have endorsed the additional holding of five Justices that the particularity requirement of the Warrant Clause does not mandate inclusion of a triggering condition in an anticipatory warrant. See id. at 98-99.
310 311
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probably arrive at a particular place and be there when officers enter. The post-Rehnquist Court has addressed six cases involving three different exceptions to the search warrant rule. Some would delight the former Chief Justice; others would distress him. Rehnquist would have wholeheartedly joined the unanimous conclusion in Virginia v. Moore that arrests based on probable cause and searches incident to those arrests are constitutional even though state law forbids arrest for the particular offense.315 The ruling and opinion were entirely in line with his preference for deference to officers judgments, his view that reasonableness is the Fourth Amendment touchstone and is determined by interest balancing, and, of course, his indulgent attitude toward the breadth of the search incident to arrest doctrine.316 The Courts much more significant search incident to arrest ruling would have prompted intense dissent. In Arizona v. Gant,317 a bare majority of five contracted the broad authority to search vehicles incident to the arrest of recent occupants that officers had been exercising for nearly thirty years.318 The majority ruled that officers may exercise traditional search incident to arrest authority only when an arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search and indicated that officers might be compelled to do what they would rarely be unable to doeliminate the need to search the vehicle by depriving an arrestee of access.319 The majority did endorse an alternative variety of search incident authority allowing warrantless passenger compartment searches
553 U.S. 164, 176-78 (2008). See Thornton v. United States, 541 U.S. 615, 620-24 (2004); New York v. Belton, 453 U.S. 454, 463 (1981) (Rehnquist, J., concurring); United States v. Robinson, 414 U.S. 218, 235-36 (1973). The opinion in Moore would also have appealed to Rehnquists hostility toward exclusion. Justice Scalia highlighted the inappropriateness of forcing a state to accept a constitutional evidentiary bar as the price of affording its citizens more protection against arrest than required by the Fourth Amendment. See Moore, 553 U.S. at 174. 317 556 U.S. 332 (2009). 318 See id. at 359 (Alito, J., dissenting) (observing that [t]he Belton rule ha[d] been taught to police officers for more than a quarter century). 319 Id. at 343, 343 n.4.
315 316
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when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.320 In Thornton v. United States,321 one of his last Fourth Amendment opinions, Chief Justice Rehnquist did not expressly reject Gants interpretation of Belton, but did intimate that he was not receptive.322 Moreover, he would have disagreed with the majoritys point of departurereliance on the basic rule requiring search warrants.323 He would have rejected the Courts emphasis on the high value of vehicle privacy324 and its reliance on the fact that officers had no need for the authority Gant took away because they have ample alternative means of legitimately protecting safety and evidentiary interests.325 He would have opposed the majoritys rejection of the argument that the interest in clear guidance and many years of officer reliance justified the status quo.326 Most of all, realizing that the expansive interpretation of Belton had been very productive for law enforcers, allowing thorough, contemporaneous searches of car contents in conjunction with all arrests, and that many of these searches might not otherwise be justified, Rehnquist would have strenuously resisted the decision to restore some of the Fourth Amendment protection against warrantless (and causeless) searches enjoyed prior to 1981.327 Gant, the sole Roberts Court decision that has unraveled crime control gains achieved during
320 Id. at 343 (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring in the judgment)). 321 541 U.S. 615 (2004). 322 See id. at 622-23, 623 n.3, 624 n.4 (suggesting that case-by-case determinations of arrestee access to a passenger compartment are unworkable and impracticable and undermine the need for a clear rulethat is, for the sort of generalization which Belton enunciatedand stating that it would have been imprudent to overrule Belton, which was established constitutional precedent). 323 See Gant, 556 U.S. at 338. 324 See id. at 344-45. 325 See id. at 346-47. 326 See id. at 345-46, 349-50. 327 Rehnquist would have been pleased, at least, that the Court gave back some of what it took away in Gant by recognizing the alternative authority to conduct a search for evidence incident to arrests of recent occupants when the nature of the offense involved indicates that evidence might be found. See supra text accompanying note 319.
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the Rehnquist years, would have troubled his law and order soul.328 William Rehnquist would have been extremely pleased with all three post-2005 rulings concerning the exigent circumstances exception to the warrant requirement, for each affirmed generous authority for warrantless home entries. The first two opinions Brigham City, Utah v. Stuart329 and Michigan v. Fisher330 dealt with the need to enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.331 The Court sustained warrantless entries in both cases, initially stressing that the authority hinged upon a reasonable belief that someone inside is seriously injured or threatened with such injury,332 but then seeming to discount the need that an actual or threatened injury must be serious.333 Rehnquist would have enthusiastically endorsed the conclusions that officers subjective motivations are irrelevant and that they do not need ironclad proof of a likely serious, life-threatening injury.334 He surely would have been pleased that the Court did not insist that officers have probable cause to believe that emergency assistance is neededbut, instead, required only an objectively reasonable basis for believing that someone might need help.335
328 It bears mention that the result in Gant is not attributable to any change in membership following Thornton. The five majority Justices were all Rehnquist colleagues. If the Rehnquist Court had faced the issue, the majority support might have been even larger. In Thornton, Justice OConnor indicated sympathy with Justice Scalias challenges to Belton authority. See Thornton v. United States, 541 U.S. 615, 624-25 (2004) (OConnor, J., concurring in part). Her replacement, Justice Alito, authored the Gant dissent. 329 547 U.S. 398 (2006). 330 130 S. Ct. 546 (2009). 331 Stuart, 547 U.S. at 403. 332 Id. 333 In Fisher, the Court first quoted the serious injury language, see Fisher, 130 S. Ct. at 548, but then ignored that qualification in later passages. The Court stated, for example, that officers must have a reasonable belief that medical assistance [is] needed, or persons [are] in danger, id. at 549, and held that the entry in the case was constitutional because it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment . . . or that Fisher was about to hurt, or had already hurt, someone else. Id. 334 Id. 335 Stuart, 547 U.S. at 402, 406. See also id. at 400 (conclud[ing] that officers may enter a home without a warrant when they have an objectively reasonable basis for
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Kentucky v. King336 is the third exigent circumstances opinion from the Roberts Court. With near unanimity, the Justices rejected various lower court doctrines that would have prevented reliance on exigencies officers generate.337 According to King, officers may not justify a warrantless search based on an exigency of their own creation only when the precipitating conduct violates or threatens to violate Fourth Amendment rights.338 King declares that in all but a few cases it is irrelevant that officers have brought about the need to act without judicial approval. The decision allows them to engage in a wide variety of conduct designed to prompt a reaction that will suspend the search warrant requirement and demands no justification for the triggering conduct. The staunchest advocate of expansive law enforcement authority would undoubtedly have applauded this decision. He would have been delighted by Justice Alitos tepid endorsement of the warrant rule,339 his reliance on reasonableness as the Fourth Amendment key that dictated the Courts ultimate conclusion,340 and his deference to officers needs to have clear guidance for their quick decisions.341 Rehnquists beacons informed King, producing indulgence of investigators choices. The majority refused a plea to strengthen the search warrant requirementa prime Rehnquist targetby narrowing the exigent circumstances doctrine. Just six months after the Chief Justice departed, the Justices decided Georgia v. Randolph.342 A five-Justice majority restricted third-party consent authority, holding that a home entry pursuant to the consent of one co-occupant is unreasonable as to another cobelieving that an occupant is seriously injured or imminently threatened with such injury). In general, the exigent circumstances exception requires probable cause to searcha fair probability that a warrantless search will be productive. See Welsh v. Wisconsin, 466 U.S. 740, 749 (1984); see also Chimel v. California, 395 U.S. 752, 773 (1969) (White, J., dissenting). The Roberts Courts emergency assistance opinions do not specify that same level of likelihood of an actual or threatened injury, leaving open the possibility that a lesser probability suffices. 336 131 S. Ct. 1849 (2011). 337 See id. at 1858-61. 338 See id. at 1858. 339 See id. at 1856. 340 See id. 341 See id. at 1860-61. 342 547 U.S. 103 (2006).
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occupant who is physically present and refuses to consent.343 Rehnquist would have been at least as unsettled by the Courts ruling as his successor.344 During his long tenure, every ruling regarding consent search authority favored law enforcement.345 Randolph was a surprising break in the consent exceptions steady erosion of the warrant requirement. The Court relied on somewhat novel reasoning346 to draw an admittedly formalistic line347 that protects home privacy only when a person who happens to be present at the time consent is sought voices opposition.348 William Rehnquist favored the governments position in every consent case, and would certainly have done so in Randolph. He would not have been happy with the majoritys reliance on his Rakas reasoning to support its new widely shared social expectations criterion,349 with the citation to his opinion in Wilson v. Layne for the proposition that home privacy deserves special solicitude,350 or with the Courts bows to the vital protection the search warrant rule affords.351 Most of all, knowing that consent searches are an incredibly productive law enforcement tool, he would have objected to the restriction on cooccupant authority to allow officers into shared dwellings. However, because Randolph did not take away powers recognized in prior rulings and imposed a very small, often avoidable
Id. at 106, 120. Chief Justice Roberts penned a powerful, lengthy dissent. See id. at 127 (Roberts, C.J., dissenting). 345 See United States v. Drayton, 536 U.S. 194 (2002); Ohio v. Robinette, 519 U.S. 33 (1996); Florida v. Jimeno, 500 U.S. 248 (1991); Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Watson, 423 U.S. 411 (1976); United States v. Matlock, 415 U.S. 164 (1974); Schneckloth v. Bustamonte, 412 U.S. 218 (1973). 346 See Randolph, 547 U.S. at 111 (asserting that a constant element in assessing . . . reasonableness in the consent cases . . . is the great significance given to widely shared social expectations); id. at 130-31 (Roberts, C.J., dissenting) (observing that, contrary to the Courts suggestions, prior decisions had not looked to widely shared social expectations to decide questions of consent or to determine whether searches were reasonable). 347 See id. at 121. 348 See id. at 127, 137 (Roberts, C.J., dissenting) (arguing that the majoritys rule provides random privacy protection and protects good luck more than it protects privacy). 349 Id. at 111. 350 Id. at 115. 351 Id. at 109, 117.
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limitation on third-party consent authority, Rehnquist would find it much less objectionable than Gant. It would rank as his second least favorite Fourth Amendment ruling of the Roberts Court. Arizona v. Johnson,352 the only post-2005 Terry doctrine case, produced a unanimous reversal of a state court decision that a frisk of a vehicle passenger was unreasonable because the initial seizure of the passenger had become a consensual encounter.353 The Justices could find no basis for a determination that the seizure of the passenger had ended.354 They concluded that if the officer had a reasonable suspicion that he was armed and dangerous, the patdown was permissible.355 Rehnquist would have found much to like in both the result and reasoning. First, Johnson expanded Terry authority. Precedent permitted frisks of persons reasonably suspected of criminal activity.356 In traffic stops of drivers, officers seize passengers incidentally, not on the basis of suspicions about their conduct. The Court announced first that seizures of passengers remain[] reasonable[] for the duration of the stop of a driver.357 The Justices then relied on Rehnquists reasoning in Maryland v. Wilson to confirm his forecast in Knowles v. Iowa that officers who conduct routine traffic stop[s] may perform a patdown of . . . any passengers upon reasonable suspicion that they may be armed and dangerous.358 Seeds the Chief Justice planted in two majority opinions359 bore pro-law enforcement fruit in Johnson an entitlement to promote safety by disarming potentially dangerous passengers.
555 U.S. 323 (2009). Id. at 329. 354 Id. at 333-34. 355 Id. at 332. Because the lower court had merely assumed that the officer had such a suspicion, the Justices pointed out that the issue could be considered on remand. See id. at 334 n.2. In general, Rehnquist seemed content to trust lower courts with such decisions. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 383 (1993) (Rehnquist, J., concurring in part and dissenting in part) (preferring to allow the lower court to decide whether the officer had gained probable cause to believe contraband was present before he exceeded the scope of Terry frisk authority). 356 See Terry v. Ohio, 392 U.S. 1, 24, 30 (1968); see also Dickerson, 508 U.S. at 373. 357 Johnson, 555 U.S. at 333. 358 Id. at 332 (quoting Knowles v. Iowa, 525 U.S. 113, 117-18 (1998)). 359 Rehnquist had planted his pro-law enforcement seed in Knowles in the course of a unanimous opinion that sustained a claim that a search incident to a traffic citation violated the Fourth Amendment.
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Safford Unified School District #1 v. Redding360 interpreted the scope of school officials authority to search students on reasonable suspicion recognized in New Jersey v. T.L.O.361 A nearly unanimous Court held that a strip search of a student was too intrusive to be constitutional without a reason[] to suspect that the over-the-counter drugs she was thought to possess either presented a danger or were concealed in her underwear.362 It seems highly likely that Rehnquist would have joined Justice Thomas, the lone dissenter on the merits of the Fourth Amendment claim.363 First, Rehnquist voted in favor of a Fourth Amendment claim in a nonunanimous case only one time in thirty-three years.364 A vote with the Safford majority would have been just the second occasion in which another Justice favored broader search authority than the former Chief Justice. Moreover, he would have found Justice Thomass dissenting analysis attractive. While the majority stressed the probable cause norm,365 Justice Thomas focused on reasonableness,366 emphasizing the important interests at stake in schools,367 the difficult tasks school officials face,368 and the resulting need to read the Fourth Amendment to grant [them] considerable leeway to monitor student conduct.369 He accused the majority of inappropriately substituting its own judgment about the importance of the institutions rule
557 U.S. 364 (2009). 469 U.S. 325 (1985). 362 Safford, 557 U.S. at 368; see also id. at 377 (stating that it was the combination of these deficiencies [that] was fatal to finding the search reasonable). The Court did conclude, however, that the principal involved was entitled to qualified immunity, a decision Rehnquist would surely have supported. Id. at 379. 363 See id. at 382 (Thomas, J., concurring in part and dissenting in part). 364 See supra note 37 (pointing out that Rehnquist cast his one pro-Fourth Amendment vote in a non-unanimous decision in Bond v. United States). 365 See id. at 370. 366 See id. at 383, 387 (Thomas, J., concurring in the judgment in part and dissenting in part). 367 See id. at 383-84, 393-97. 368 See id. at 383-84, 392-93. 369 See id. at 387. In Justice Thomass view, a reasonable suspicion that the student possessed forbidden drugs made it eminently reasonable to look beneath her clothing once a search of her backpack was unproductive. There was no need for a more specific showing that the drugs would be found there. See id. at 389-90.
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prohibiting over-the-counter drugs.370 Thomass themes particularly deference to educators decisionswould have resonated with Rehnquist. As in Gant and Randolph, the proFourth Amendment ruling in Safford would have dismayed him. The outcome of the Roberts Courts other strip search case Florence v. Board of Chosen Freeholders of the Count of Burlington371would have brightened Rehnquists spirits. A slim majority concluded that it is reasonable for prison officials routinely to conduct extremely intrusive strip searches of those detained for any offense prior to their admission into the general prison population.372 It rejected the claim that individualized reasonable suspicion is required to strip search a detainee for a minor, nonviolent offense.373 The Courts conclusion and logic would both have received Rehnquists imprimatur. The majoritys analytical starting point was Bell v. Wolfish, an early Rehnquist opinion sustaining strip searches of pretrial detainees after contact visits with outsiders.374 Rehnquists theme of defer[ence] to the judgment of correctional officials375 played a prominent part in Florence.376 He would have agreed with Justice Kennedys recognition of the undoubted security imperatives involved in jail supervision377 and with his conclusion that the
See id. at 390-94. 132 S. Ct. 1510 (2012). 372 See id. at 1513-14, 1518, 1520. The holding is limited by the important condition that those searched will be admitted into the general jail population or at least will have substantial contact with other detainees. See id. at 1522. In addition, the Court did not rule out the possibility that there could be an exception for some detainees who are arrested for minor offenses, could be held in facilities apart from the general population, and have not received judicial review of their detention. See id. at 1523; see also id. at 1524-25 (Alito, J., concurring). Moreover, the Court carefully observed that it was ruling only on strip searches that did not involve touching a detainee. See id. at 1523. 373 See id. at 1518, 1520. 374 441 U.S. 520 (1979). The Court framed the que stion [as] whether visual bodycavity inspections . . . can ever be conducted on less than probable cause and simply conclude[d] that they can. Id. at 560. Nonetheless, the majority held that the strip searches after every contact visit were not . . . unreasonable, and it is clear that the searches were conducted in the absence of any particularized suspicion that a detainee was in possession of a weapon or contraband. See id. at 558. 375 Florence, 132 S. Ct. at 1516. 376 See id. at 1513-18 (adverting multiple times to the need for deference to the judgments of those who administer and operate correctional institutions). 377 Id. at 1518.
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official response to the situationa thorough strip search of every prisonerwas not exaggerated.378 The majoritys reliance on the significant interest in readily administrable rules,379 declaration that it would be impractical and counterproductive to require corrections officials to distinguish among detainees,380 and conclusion that the prisons search procedures . . . struck a reasonable balance between inmate privacy and the needs of the institutions381 reflected recurrent Rehnquistian themes and confirm his continuing influence. As noted, William Rehnquist was favorably disposed toward programs authorizing suspicionless searches and seizures.382 He would have been confident that the situation in Florence was a compelling case for such authority. Rehnquist would approve the outcome and would have been extremely pleased with the reasoning in Samson v. California,383 the other post-2005 case involving a suspicionless search. Under a California statute, inmates released on parole had to agree to searches or seizures by officers without warrants or cause.384 An officer found methamphetamine during a suspicionless search of the defendant-parolee, and a conviction for possession had resulted.385 Six Justices joined a majority opinion declaring that search reasonable.386 For multiple reasons, the Courts analysis would have delighted Rehnquist. Justice Thomas affirmed that the former Chief Justices preferred method of resolving Fourth Amendment issues was the Courts general Fourth Amendment approach.387 That approach required examination of the totality of the circumstances to determine reasonableness, and that
Id. Id. at 1522. 380 Id. at 1521-22. 381 Id. at 1523. 382 See supra notes 216-27 and accompanying text. 383 547 U.S. 843 (2006). 384 See id. at 846. 385 See id. at 847. 386 See id. at 857. In United States v. Knights, 534 U.S. 112 (2001), which the Court relied upon, Chief Justice Rehnquist had concluded that a search of a probationer based on reasonable suspicion was constitutional, but had highlighted the fact that a suspicionless search might be permissible. See id. at 120 n.6. 387 Samson, 547 U.S. at 848 (quoting United States v. Knights, 534 U.S. 112, 118 (2001)).
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determination hinged upon interest balancing.388 Moreover, the application of the balancing analysis in Samson was positively Rehnquistian. Because of his status as a parolee389 and because of his acceptance of a clear and unambiguous search condition, Samson did not have a legitimate expectation of privacy.390 On the other side of the balance were substantial state interests in supervising parolees, and in reducing recidivism and thereby promoting reintegration and positive citizenship.391 An individualized suspicion requirement for parolee searches would [have] undermine[d] the . . . ability to serve these interests effectively.392 Consequently, the balance of relevant interests dictated a conclusion that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.393 In a significant footnote, Justice Thomas responded to dissenters by disavowing the notion that individualized suspicion is a Fourth Amendment touchstone.394 Although the Court had recognized that it was usually a prerequisite, and had only sanctioned suspicionless searches in limited circumstances, namely, programmatic and special needs searches, the Justices had never held these were the only limited circumstances in which searches absent individualized suspicion could be reasonable.395 Rehnquists hostility to rigid Fourth Amendment norms would have led him to applaud both the rejection of the premise that individualized suspicion is a requirement that is not easily suspended and the declaration that
See id. Id. at 852. Parolees were on the continuum of state-imposed punishments and had even fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. Id. at 850. 390 See id. at 852. It seems odd that the Court proceeded to analyze whether the search was reasonable after declaring that Samson had no legitimate expectation of privacy. Later in the opinion, Justice Thomas confused matters more by referring to a parolees substantially diminished expectation of privacy. Id. at 855. 391 Id. at 853. 392 Id. at 854. 393 Id. at 857. Surely, the breadth of this pro-law enforcement holding would have pleased the former Chief Justice. On its face, it appears to declare all suspicionless searches of all parolees constitutional. 394 See id. at 855 n.4. 395 Id.
388 389
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suspicionless searches can be reasonable outside the programmatic and special needs contexts addressed in precedents. The final substantive Fourth Amendment decision is Scott v. Harris.396 Eight Justices concluded that the manner in which an officer seized a fleeing motoristby applying his push bumper to the rear of [the mans] vehicle,397 causing the man to lose control and crashwas objectively reasonable.398 Rehnquist surely would have aligned himself with the majority. As a dissenter in Tennessee v. Garner,399 the Chief Justice would have been pleased with the decision to confine that cases demanding, probable cause-based standard for seizures by deadly force400 to the particular type of force in [the] particular situation Garner involved.401 The conclusions that the constitutionality of the deadly force in Harris turned entirely on the factbound question of whether the officers actions were reasonable and that reasonableness had to be determined by interest balancing402 exemplified the Fourth Amendment analysis Rehnquist promoted in opinion after opinion.403 Hostile as he was to less intrusive alternative reasoning, he would have applauded the Courts resounding rejection of the claim that officers ought to protect the innocent public by ceas[ing] their pursuit of fleeing motorists.404 Finally, William Rehnquist would have enthusiastically embraced Harriss generous-to-law-enforcement,
550 U.S. 372 (2007). Id. at 375. 398 Id. at 381. 399 471 U.S. 1, 22 (1985) (OConnor, J., dissenting). 400 In Garner, the Court held that if a suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. Id. at 11-12. 401 Harris, 550 U.S. at 382. The Court stressed that the situation in Garnerwhich involved the use of a firearm to prevent the escape of a fleeing suspect who posed no particular threatwas vastly different from the situation in Harriswhich involved an officer bumping a fleeing car with his vehicle during a chase that posed extreme danger to human life. Id. at 382-83. 402 Id. at 383. 403 See supra notes 202-27 and accompanying text. Rehnquist would also have agreed that the reasonableness balance must take into account the culpability of a fleeing motorist who endangers lives and the innocence of those endangered. Harris, 550 U.S. at 384. 404 Id. at 385.
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sensible rulethat a police officers attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.405 In sum, the former Chief Justice would have agreed with the twelve Roberts Courts rulings against Fourth Amendment claims.406 He would have opposed the three pro-Fourth Amendment decisions in which the Justices divided, and most likely would have gone along with the two unanimous rulings favoring protection. It is impossible to overstate how positive Rehnquists reactions would be to the three post-2005 exclusionary rule decisionsHudson v. Michigan,407 Herring v. United States,408 and Davis v. United States.409 He would surely be ecstatic, perhaps even astounded, at how far his colleagues were willing to
405 Id. at 386. Two additional Fourth Amendment decisions merit only brief mention. The first is Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011), which involved the narrow issue of whether pretextual use of a valid material-witness warrant to detain a terrorism suspectwhen probable cause for an arrest warrant is lackingviolates the Fourth Amendment. A majority concluded that the Whren principlethat reasonableness is judged objectively and that subjective motivations are irrelevant dictated rejection of the pretext claim. The Justices interpreted Whren broadly, suggesting that officers subjective intentions can render searches or seizures unreasonable only in special-needs and administrative inspection cases. See id. at 2080-83. Rehnquist would have agreed with the outcome and the message that officers actual motivations will rarely defeat efforts to enforce the law. In the other case, Los Angeles County v. Rettele, 550 U.S. 609 (2007), officers who were executing a valid search warrant in a home ordered two unclothed occupants to get out of bed and, for a short time, prevented them from getting dressed. The couple was of a different race than the suspects in the case. In a per curiam opinion, the Court held that the officers had not acted in an unreasonable manner, but, instead, had properly exercised the legitimate authority to protect themselves from harm recognized in the Courts precedents. Id. at 616. One of those precedents, Muehler v. Mena, 544 U.S. 93 (2005), was Chief Justice Rehnquists final Fourth Amendment opinion. Based on Mena and his concern that officers have the power to carry out their tasks safely and effectively, there can be no doubt that Rehnquist would have agreed that the officers orders . . . to the occupants in Rettele were permissible, and perhaps necessary, to protect the[ir] safety. 550 U.S. at 614. 406 The twelve pro law enforcement rulings include the nine cases described in the text plus the three discussed briefly in footnotes 288 and 390. 407 547 U.S. 586 (2006). 408 555 U.S. 135 (2009). 409 131 S. Ct. 2419 (2011).
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move in his direction in a mere five-year span. His sole regret would be that he had not been able to participate actively in the analytical and doctrinal developments targeting the exclusionary rule for extinction. Less than a year after Rehnquists departure, the Court launched its first assault on the Weeks-Mapp doctrine. The simple holding of Hudson v. Michigan was that exclusion is not available for violations of the knock-and-announce principle.410 Rehnquist would approve this novel exception, but his delight would be in the three foundations of the Courts holdingeach of which provides a springboard for additional erosion of the suppression doctrine. And he would relish the hostile, pejorative barbs Justice Scalia directed toward exclusion. First, the Court endorsed a limiting conception of the but-for causation requirement that allows a search to be divided into constituent elements and demands a causal link between the unconstitutional element and the evidence.411 Rehnquist, who sought to eliminate suppression entirely, would be pleased by the decision to carve up official conduct into discrete components, thereby increasing the number of situations in which defendants are unable to satisfy the causation predicate.412 Independently, Hudson created and relied upon a novel version of the attenuation doctrine. By tradition and nature, that exclusionary rule exception had applied only to derivative evidence with weakened causal connections.413 Hudsons new,
410 See Hudson, 547 U.S. at 599. For a thorough exploration and critique of Hudson, see James J. Tomkovicz, Hudson v. Michigan and the Future of Fourth Amendment Exclusion, 93 IOWA L. REV. 1819 (2008). 411 See Tomkovicz, supra note 410, at 1849-54. In Hudson, the Court separated the illegal entry from the legal home search that followed. See Hudson, 547 U.S. at 592. 412 The majority drew support for its analysis from Rehnquists majority opinion in United States v. Ramirez, 523 U.S. 65 (1998). See Hudson, 547 U.S. at 602. For a discussion of the potential use of Hudsons causation premises to foreclose suppression in other situations, see Tomkovicz, supra note 410, at 1854-58. 413 The traditional attenuation exception applies only when the connection between . . . lawless conduct of the police and the discovery of . . . evidence has become so attenuated as to dissipate the taint of the lawlessness. See Wong Sun v. United States, 371 U.S. 471, 487 (1963) (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). Because primary evidence is, by definition, discovered as a direct and immediate result of illegal conduct, it is too closely connected to the illegality to qualify for admission under this exclusionary rule exception. Only evidence that is acquired by means sufficiently distinguishable to be purged of the primary taintderivative
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entirely distinct branch of attenuation starts from the premise that suppression is appropriate only if the Fourth Amendment rule violated is designed to shield potential evidence from the governments eyes.414 Generalized, this premise would dictate the admission of evidence gained by violating any Fourth Amendment rule whose purpose is not to shelter information from official scrutiny.415 Like the Courts approach to causation, the Hudson variation on the attenuation theme furthered Rehnquists ultimate objectivethe introduction of all probative evidence in criminal proceedings. Unsatisfied with only two bases for denying suppression, the Hudson Court offered yet a third. The majority concluded that the balance always favors the admission of evidence in knock-andannounce contexts because the social costs of suppression always exceed the deterrent benefits.416 Many of Justice Scalias assessments and characterizations of those costs and benefits could dictate similar conclusions for violations of other Fourth Amendment commands. Rehnquist would have embraced this invitation to balance rule-by-rule, coupled with the inflation of costs and deflation of benefits. It poses a serious threat to the operation of the exclusionary rule.417 Finally, Rehnquist would have been encouraged by the palpable hostility to the exclusionary rule throughout the majority opinion. Justice Scalia announced, for example, that [s]uppression . . . ha[d] always been [the Courts] last resort in part because it not only freed the guilty, but also set[] . . . the dangerous at large.418 He stressed that the Court had long since rejected the Warren Courts dicta which had suggested wide scope for the exclusionary rule419 and indicated that changes in
evidencecan be introduced under the traditional attenuation exception. See Wong Sun, 371 U.S. at 488 (quoting JOHN M. MAGUIRE, EVIDENCE OF GUILT 221 (1959)). 414 See Hudson, 547 U.S. at 593. According to the majority, because that is not a purpose of the knock-and-announce rule, the new exception applied. See id. at 594. 415 For a discussion of the new attenuation doctrines potential application to other kinds of Fourth Amendment violation, see Tomkovicz, supra note 410, at 1865. 416 See Hudson, 547 U.S. at 594-99. 417 For a discussion of which aspects of Justice Scalias balancing process might apply in other than knock-and-announce situations, see Tomkovicz, supra note 410, at 1876-80. 418 Hudson, 547 U.S. at 591. 419 Id. at 591.
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the legal regime since Mapp had rendered it anachronistic.420 The message was that the heydays of the Weeks-Mapp doctrine were over and that the time for a new approach had arrived.421 How could William Rehnquist not have been overjoyed by these echoes of themes he had sounded long before 2006 and by the Courts disdain for its own creation which had no roots in the Fourth Amendment text? Herring and Davis reflect a different, perhaps more effective strategy for decimating evidentiary suppression.422 In each, a majority adopted an additional variety of good faith-reasonable reliance exception. Herring held that officers objectively reasonable reliance on negligent errors by other police agencies suspends the evidentiary bar.423 Davis concluded that objectively reasonable reliance on binding judicial precedent has the same effect.424 Rehnquist would have embraced the two additional holes in the Weeks-Mapp mandate, but would have found more cause for celebration in his successors announcement of a threshold culpability predicate essential for application of the suppression sanction. Relying on the deterrent foundations of the exclusionary rule, on the facts of landmark rulings, and on earlier recognitions of the role of official fault, the Herring majority announced a dramatic reform. Five Justices declared that evidence should not be barred unless officers Fourth Amendment violations are blameworthy and that mere isolated negligence is insufficient culpability.425 Gross negligence, or perhaps a pattern of recurrent ordinary negligence, is the minimum fault necessary for suppression.426 Herrings revolution, solidified by a six-Justice
420 See id. at 597. According to Justice Scalia, the public today should not be forced to pay for the sins and inadequacies of a legal regime that existed almost half a century ago. Id. 421 See id. at 597. 422 For discussions of these two opinions, see Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Courts Latest Assault on the Exclusionary Rule , 99 J. CRIM. L. & CRIMINOLOGY 757 (2009); Tracey Maclin & Jennifer Rader, No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule, 81 MISS. L.J. 1183 (2012); James J. Tomkovicz, Davis v. United States: The Exclusion Revolution Continues, 9 OHIO ST. J. CRIM. L. 381 (2011). 423 See Herring v. United States, 555 U.S. 135, 137, 146 (2009). 424 See Davis v. United States, 131 S. Ct. 2419, 2423-24, 2434 (2011). 425 See Herring, 555 U.S. at 143-44. 426 See id. at 144.
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majority in Davis as the future of exclusionary rule jurisprudence, means that the quest for truth will no longer be thwarted unless a defendant can demonstrate that officers not only violated the Fourth Amendment, but did so with enough culpability. The territory governed by the exclusionary rule will surely be drastically smaller. With Herring and Davis, the Court moved a giant step closer to making Rehnquists dream of outright abolition a reality. If he was able, the former Chief Justice would surely express deep appreciation for the Roberts Courts retreat from the exclusionary rule. He would have been proud to author Hudson, Herring, and Davis, each of which advanced his longstanding campaign to rectify this particular Fourth Amendment imbalance. Rehnquist might well find the Courts missteps in Gant and Randolph tolerable after the suppression decisions, which make it considerably less likely that a violation of any Fourth Amendment principle will impede efforts to convict the guilty. On the whole, the former Chief Justice could hardly be dissatisfied with the Courts labors in the Fourth Amendment fields since his passing. The Court has favored the Governments position seventy-five percent of the timein fifteen of twenty rulings. William Rehnquists understanding of the provision continues to modify the balance by restoring more generous search and seizure authority to law enforcers. Moreover, it seems entirely likely that his vision will influence developments for some time to come.
CONCLUSION
My portrait of Chief Justice William Rehnquist, as reflected in the Fourth Amendment mirror, requires but a few more brush strokessome finishing touches. The picture that has emerged is not impressionistic, but realistic. Like his views, it is neither nuanced nor ambiguous. William Rehnquist had no doubt that the Court had misinterpreted this central Bill of Rights provision in fundamental ways, that the Justices had distorted the constitutional balance by unjustifiably favoring civil liberties over law and order. From before his time on the Court, he made his
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views known,427 and while serving as Justice and Chief Justice for more than three decades, he consistently sought to correct the imbalance by impressing his vision upon the law.428 He was never uncertain, hesitant, or doubtful about the validity of his understanding of the Constitution, but, instead, was utterly confident in its correctness.429 He challenged basic norms and guiding premises in the Fourth Amendment jurisprudence fashioned by the Warren Court, and he worked to replace them with a more flexible method of interpretation that centered around the textual requirement of reasonableness and called upon the judiciary to balance the totality of relevant facts in each case.430 The portrait is one of undeniable and enormous success, both during his time on the Court and since his departure.431 As a result of narrower search and seizure thresholds, law enforcers are free to engage in many activities without constitutional regulation. The restraining force of the probable cause norm has been weakened, and there are myriad avenues around the
427 See Davies, supra note 15, at 993 (observing that Rehnquists opposition to the Warren Courts criminal procedure rulings was a reason that President Nixon sought to appoint him); DAVIS, supra note 19, at 10 (pointing out that in his confirmation hearing Rehnquist let it be known that he was not averse to overturning Warren Court precedent, particularly in the area of the rights of the accused). 428 See Bradley, supra note 17, at 278 (stating that [n]o other Justice approached Rehnquist in maintaining such a consistent stance in favor of . . . law enforcement); Rahdert, supra note 16, at 841 (maintaining that Rehnquists influence no doubt reflects his ability to maintain and press a consistent vision of the Constitution). 429 In disagreeing with Rehnquists abandonment of the two-pronged test for assessing hearsay in Illinois v. Gates and suggesting that judges were capable of interpreting and applying that test, Justice White admitted, I may be wrong. See Illinois v. Gates, 462 U.S. 213, 274 (1983) (White, J., concurring in the judgment). It is difficult to imagine Chief Justice Rehnquist making a similar concession about his Fourth Amendment views. 430 Cf. David A. Sklansky, The Fourth Amendment and Common Law, 100 COLUM. L. REV. 1739, 1791 (2000) (observing that although Rehnquist did not believe in a living Constitution, he did believe that when the Framers spoke in general language they left to succeeding generations the task of applying that language to the unceasingly changing environment, and contending that few parts of the Constitution seem to call more loudly for this kind of interpretation than the . . . Fourth Amendment guarantee against unreasonable searches and seizures). 431 See Bilionis, supra note 6, at 989-90 (asserting that criminal justice is no longer a project of conservative law reform because [t]he forces . . . of law and order have been satisfied); Bradley, supra note 145, at 58 (maintaining that Rehnquist was able to, in effect, rewrite the Constitution).
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impediment imposed by the warrant requirement. Moreover, the reach of the exclusionary rule has been constricted and its operation curtailed. Finally, although the Court does not always follow the analytical mode prescribed by the former Chief Justice, his exhortation to focus on reasonableness and balance competing interestsand to accord law enforcement its due in the process has been heard. While he was on the Court, this approach to resolving Fourth Amendment issues came to dominate, and it has continued to influence analysis during the first seven years of the Roberts Court. The constitutional balance is very different today than it was in 1972. Most of the difference seems attributable to William Rehnquists influence. He had the good fortune to serve for an extraordinarily long period with several colleagues sympathetic to his views. He had the patience, confidence, persistence, and resolve necessary to reshape doctrine and reasoning in his image. In todays constitutional museum, his portrait hangs prominently on the Fourth Amendment wall.
FOURTH AMENDMENT DECISIONS DURING THE REHNQUIST YEARS (19722005)
Black: Rehnquist did not author an opinion Blue: Rehnquist authored an opinion Red: Rehnquist did not participate
443
444
CASE 1 United States v. Biswell, 406 U.S. 311 (1972) (8-1)
REHNQUIST POSITION/ROLE Majority - Voted with Majority
MAJORITY JUSTICES White, Burger, Brennan, Stewart, Marshall, Blackmun, Powell, Rehnquist Rehnquist, Burger, Stewart, White, Blackmun, Powell Powell, Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Rehnquist Per Curiam Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist Stewart, Burger, White, Blackmun, Powell, Rehnquist
DISSENTING JUSTICES Douglas
HOLDING Warrantless inspection of business/gun premises reasonable under statute
R=FOR or AGAINST 4A Against 4A
Adams v. Williams, 407 U.S. 143 (1972) (6-3) Shadwick v. City of Tampa, 407 U.S. 345 (1972) (9-0)
Majority - Wrote Majority Opinion
Douglas, Brennan, Frisk/removal of gun from Marshall suspect based on tip reasonable
Against 4A
Majority - Voted with Majority
Municipal court clerks were Against 4A neutral and detached magistrates for issuance of arrest warrants
Combs v. United States, 408 U.S. 224 (1972) (9-0)
Defendant lost on standing ground below; remand to district court to determine if had reasonable expectation in place/standing to suppress Douglas, Brennan, Requiring grand jury Marshall witness to appear before grand jury and to produce voice exemplars did not infringe on 4A interests
For defendant, but neutral on 4A
United States v. Dionisio, 410 U.S. 1 (1973) (6-3)
Against 4A
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United States v. Mara, 410 U.S. 19 (1973) (6-3) Brown v. United States, 411 U.S. 223 (1973) (9-0)
Stewart, Burger, White, Blackmun, Powell, Rehnquist Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist Stewart, Burger, White, Blackmun, Powell, Rehnquist Stewart, Burger, White, Marshall, Blackmun, Powell, Rehnquist Stewart, Douglas, Brennan, Marshall, Powell Rehnquist, Burger, White, Blackmun, Powell
Douglas, Brennan, Requiring grand jury Marshall witness to produce handwriting exemplar did not intrude on 4A interest
Against 4A
Defendants lacked standing Against 4A to raise 4A objection to search pursuant to defective SW Douglas, Brennan, Consent requires Against 4A Marshall voluntariness, not knowledge of right to refuse Douglas, Brennan Warrantless scrapings from Against 4A fingernails of defendant voluntarily at station reasonable Warrantless, causeless roving border patrol search of automobile not border search and unreasonable Against 4A
FOURTH AMENDMENT DECISIONS
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (6-3) Cupp v. Murphy, 412 U.S. 291 (1973) (7-2)
Majority - Voted with Majority (joined concurrence) Majority - Voted with Majority (joined concurrence)
10
Almeida-Sanchez Dissent - Joined v. United States, Dissent 413 U.S. 266 (1973) (5-4) Cady v. Majority - Wrote Dombrowski, 413 Majority Opinion U.S. 433 (1973) (5-4)
Burger, White, Blackmun, Rehnquist
11
Douglas, Brennan, Warrantless search of Stewart, Marshall vehicle for community caretaking was reasonable; inventory precursor
Against 4A
445
446
CASE 12 Roaden v. Kentucky, 413 U.S. 496 (1973) (8-0 on 4A issue) United States v. Robinson, 414 U.S. 218 (1973) (6-3) Gustafson v. Florida, 414 U.S. 260 (1973) (6-3) United States v. Calandra, 414 U.S. 338 (1974) (6-3) United States v. Matlock, 415 U.S. 164 (1974) (6-3) United States v. Edwards, 415 U.S. 800 (1974) (5-4)
MAJORITY JUSTICES Burger, White, Brennan, Stewart, Marshall, Blackmun, Powell, Rehnquist Rehnquist, Burger, Stewart, White, Blackmun, Powell Rehnquist, Burger, Stewart, White, Blackmun, Powell Powell, Burger, Stewart, White, Blackmun, Rehnquist White, Burger, Stewart, Blackmun, Powell, Rehnquist White, Burger, Blackmun, Powell, Rehnquist
DISSENTING JUSTICES Douglas dissented on 1A grounds; invalidity of statute
HOLDING
R=FOR or AGAINST 4A
Warrantless seizure of film For 4A was prior restraint that was unreasonable under 4A
13
Douglas, Brennan, Warrantless search of an Marshall arrestees person incident to arrest is reasonable Douglas, Brennan, Warrantless search of an Marshall arrestees person incident to arrest is reasonable Douglas, Brennan, ER does not apply in grand Marshall jury proceedings (ER = exclusionary rule) Douglas, Brennan, Reversed finding of no Marshall authority to consent; remanded under common authority standard
Against 4A
14
Majority - Wrote Majority Opinion Majority - Voted with Majority
Against 4A
15
Against 4A
16
Against 4A
17
Majority- Voted with Majority
Douglas, Brennan, Seizure of arrestees Against 4A Stewart, Marshall clothing 10 hours after arrest reasonable under the circumstances
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18
California Bankers Assn v. Shultz, 416 U.S. 21 (1974) (6-3) Air Pollution Variance Board. v. Western Alfalfa, 416 U.S. 861 (1974) (9-0)
Rehnquist, Burger, Stewart, White, Blackmun, Powell
Douglas, Brennan, Recordkeeping requirement Against 4A Marshall did not infringe on 4A interest of bank customers; reporting requirement was reasonable Health inspectors entry of Against 4A outdoor premises to observe smoke plumes emitted from chimneys without knowledge or consent of occupant did not violate 4A rights of occupant Douglas, Brennan, Examination of exterior of Stewart, Marshall vehicle in public place reasonable under automobile exception; did not infringe on REP (reasonable expectation of privacy) 4A requires judicial determination of PC for extended restraint of freedom after arrest Against 4A
19
Douglas, Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist
20
Cardwell v. Lewis, 417 U.S. 583 (1974) (5-4)
Blackmun, Burger, White, Powell, Rehnquist (plurality opinion)
21
Gerstein v. Pugh, Majority - Voted with 420 U.S. 103 Majority (1975) (9-0)
Powell, Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Rehnquist
For 4A
447
448
CASE 22 United States v. Peltier, 422 U.S. 531 (1975) (5-4)
REHNQUIST POSITION/ROLE Majority - Wrote Majority Opinion
MAJORITY JUSTICES Rehnquist, Burger, White, Blackmun, Powell
DISSENTING JUSTICES
HOLDING
R=FOR or AGAINST 4A
Douglas, Brennan, ER for violation of Almeida- Against 4A Stewart, Marshall Sanchez rule not retroactively applied to case on direct appeal when decision was announced
23
Brown v. Illinois, 422 U.S. 590 (1975) (9-0)
Majority - Voted with Majority (joined concurrence in part)
Blackmun, Burger, Douglas, Brennan, Stewart, White, Marshall, Powell, Rehnquist Powell, Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Rehnquist Powell, Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Rehnquist Powell, Burger, Stewart, White, Blackmun, Rehnquist
Miranda warnings do not per se attenuate connection between illegal arrest and arrestees statements Search of vehicle at checkpoint without PC unreasonable
For 4A
24
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (9-0)
Majority - Wrote Concurrence
For 4A
25
United States v. Ortiz, 422 U.S. 891 (1975) (9-0)
Roving border patrol stop of For 4A vehicle without reasonable suspicion unreasonable
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Bowen v. United States, 422 U.S. 916 (1975) (5-4)
Douglas, Brennan, Almeida-Sanchez not Stewart, Marshall retroactive to searches before date of decision
Against 4A
2013]
27
Texas v. White, 423 U.S. 67 (1975) (6-2)
Burger, Stewart, White, Blackmun, Powell, Rehnquist White, Burger, Stewart, Blackmun, Powell, Rehnquist Powell, Burger, Stewart, White, Blackmun, Rehnquist, Stevens Rehnquist, Burger, Stewart, White, Blackmun, Powell, Stevens Blackmun, Burger, Stewart, White, Powell, Rehnquist, Stevens Burger, Blackmun, Powell, Rehnquist, Stevens
Brennan, Marshall Brennan, Marshall
Warrantless search of vehicle at station allowable under automobile exception Warrantless public arrest for felony based on probable cause to arrest was reasonable Subpoena of bank records not a 4A search of customers No REP in threshold; warrantless entry of home to arrest based on hot pursuit
Against 4A
28
United States v. Majority - Voted with Watson, 423 U.S. Majority 411 (1976) (6-2) United States v. Miller, 425 U.S. 435 (1976) (7-2) United States v. Santana, 427 U.S. 38 (1976) (7-2) Andresen v. Maryland, 427 U.S. 463 (1976) (7-2) South Dakota v. Opperman, 428 U.S. 364 (1976) (5-4) Majority - Voted with Majority
Against 4A
29
Brennan, Marshall
Against 4A
30
Brennan, Marshall
Against 4A
31
Brennan, Marshall
Warrant authorizing search Against 4A for other evidence of crime, in context, satisfied particularity requirement of Warrant Clause
32
Brennan, Stewart, Warrantless inventory Against 4A White, Marshall search of vehicle reasonable
449
450
CASE 33 United States v. Janis, 428 U.S. 433 (1976) (5-3)
MAJORITY JUSTICES Blackmun, Burger, White, Powell, Rehnquist
DISSENTING JUSTICES
HOLDING
Brennan, Stewart, ER does not apply to Marshall evidence illegally obtained by a state criminal law enforcement officer in civil tax proceeding Brennan, White, Marshall 4A exclusionary rule claims cannot be raised in habeas proceedings unless state did not accord full and fair hearing Random stops at fixed checkpoint for aliens reasonable under 4A; referral for secondary inspection permissible on less than required for roving patrol stop Warrant invalid when magistrate was paid fee for warrants issued but not paid when warrants were not issued; method of fee payment impaired neutrality of magistrate
34
Stone v. Powell, 428 U.S. 465 (1976) (6-3)
Powell, Burger, Stewart, Blackmun, Rehnquist, Stevens Powell, Burger, Stewart, White, Blackmun, Rehnquist, Stevens
Against 4A
35
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (7-2)
Brennan, Marshall
Against 4A
36
Connally v. Georgia, 429 U.S. 245 (1977) (9-0)
Per Curiam Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens
For 4A
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37
G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (9-0) United States v. Ramsey, 431 U.S. 606 (1977) (6-3) United States v. Chadwick, 433 U.S. 1 (1977) (7-2)
Blackmun, Burger, Brennan, Stewart, White, Marshall, Powell, Rehnquist, Stevens Rehnquist, Burger, Stewart, White, Blackmun, Powell Brennan, Marshall, Stevens
Warrantless seizures of automobiles in public places reasonable; warrantless entry of office unreasonable/not exigent
For & Against 4A
38
Reasonable cause to Against 4A suspect contraband validates search of envelope under border search doctrine Warrantless search of footlocker unreasonable; no exception for moveable containers Reasonable for officer to automatically order driver to get out of vehicle during traffic stop Against 4A
39
Dissent - Joined Dissent
Burger, Brennan, Stewart, White, Marshall, Powell, Stevens Per Curiam Burger, Stewart, White, Blackmun, Powell, Rehnquist Rehnquist, Burger, Stewart, White, Powell, Stevens
Blackmun, Rehnquist
40
Pennsylvania v. Majority - Voted with Mimms, 434 U.S. Majority 106 (1977) (6-3) United States v. Ceccolini, 435 U.S. 268 (1978) (6-2) Majority - Wrote Majority Opinion
Brennan, Marshall, Stevens
Against 4A
41
Brennan, Marshall
Live-witness testimony Against 4A should be more readily admitted under attenuation exception; attenuated in this case
451
452
CASE 42 Scott v. United States, 436 U.S. 128 (1978) (7-2)
MAJORITY JUSTICES Rehnquist, Burger, Stewart, White, Blackmun, Powell, Stevens
DISSENTING JUSTICES Brennan, Marshall
HOLDING
R=FOR or AGAINST 4A
Compliance with Against 4A minimization requirement (not really a of wiretap statute 4A issue) determined objectively, as in 4A analysis, which Court borrows OSHA authorization to search work area unconstitutional insofar as no warrant required Entry to fight fire valid without SW; later entry to investigate requires administrative warrant; if PC found, ordinary SW needed Search of third party/newsroom reasonable pursuant to warrant satisfying ordinary standards Homicide scene exception to SW rule not valid; warrantless search unreasonable Against 4A
43
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (5-3) Michigan v. Tyler, 436 U.S. 499 (1978) (7-1)
Minority - Joined Dissent
White, Burger, Stewart, Marshall, Powell Stewart, Burger, White, Marshall, Blackmun, Powell, Stevens
Blackmun, Rehnquist, Stevens Rehnquist
44
Minority - Wrote Dissent
Against 4A
45
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (5-3) Mincey v. Arizona, 437 U.S. 385 (1978) (9-0)
White, Burger, Blackmun, Powell, Rehnquist
Stewart, Marshall, Stevens
Against 4A
46
Majority - Wrote Concurrence in part/Dissent in part (not on 4A grounds)
Stewart, Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, Stevens
For 4A
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47
Franks v. Delaware, 438 U.S. 154 (1978) (7-2) Rakas v. Illinois, 439 U.S. 128 (1978) (5-4) Michigan v. Doran, 439 U.S. 282 (1978) (9-0)
Dissent - Wrote Dissent
Blackmun, Brennan, Stewart, White, Marshall, Powell, Stevens Rehnquist, Burger, Stewart, Blackmun, Powell Burger, Stewart, White, Powell, Rehnquist, Stevens (Blackmun, Brennan, & Marshall concurred in result only) White, Burger, Brennan, Stewart, Marshall, Blackmun, Powell, Stevens Powell, Burger, White, Blackmun, Rehnquist
Burger, Rehnquist Warrant may be challenged/ invalidated based on deliberate or reckless falsehoods Brennan, White, Marshall, Stevens
Against 4A
48
Standing doctrine Against 4A reformed; mere passengers do not have privacy interest in vehicles Majority did not address 4A Neutral on 4A; issueassumed satisfied; did not decide concurrence specified what 4A issue 4A requires in extradition settings
49
50
Delaware v. Prouse, 440 U.S. 648 (1979) (8-1)
Rehnquist
Random spot checks/stops of cars for safety/regulation purposes unreasonable
Against 4A
51
Dalia v. United States, 441 U.S. 238 (1979) (5-4)
Brennan, Stewart, 4A did not bar covert entry Marshall, Stevens to install legal electronic equipment; does not require surveillance order to include authorization for covert entry
Against 4A
453
454
CASE 52 Bell v. Wolfish, 441 U.S. 520 (1979) (6-3) Dunaway v. New York, 442 U.S. 200 (1979) (6-2) Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) (9-0) Torres v. Puerto Rico, 442 U.S. 465 (1979) (9-0)
MAJORITY JUSTICES Rehnquist, Burger, Stewart, White, Blackmun, Powell Brennan, Stewart, White, Marshall, Blackmun, Stevens Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens Blackmun, Burger, White, Rehnquist, Stevens
DISSENTING JUSTICES Brennan, Marshall, Stevens
HOLDING
R=FOR or AGAINST 4A
Prisoner visual body cavity Against 4A searches after contact visits can be reasonable without probable cause Against 4A
53
Dissent - Wrote Dissent Majority - Voted with Majority
Burger, Rehnquist Seizure of suspect required probable cause
54
Warrant not particular; For 4A magistrate not neutral and detached when participated in search 4A applies to Puerto Rico; search of luggage without SW and PC unreasonable; border search analogy not applicable; suppression required Brennan, Stewart, Use of pen register to Marshall monitor numbers dialed with cooperation of phone company not a search For 4A
55
56
Smith v. Maryland, 442 U.S. 735 (1979) (5-3)
Against 4A
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57
Arkansas v. Sanders, 442 U.S. 753 (1979) (7-2) Michigan v. Defillippo, 443 U.S. 31 (1979) (6-3) Brown v. Texas, 443 U.S. 47 (1979) (9-0)
Powell, Burger, Brennan, Stewart, White, Marshall, Stevens Burger, Stewart, White, Blackmun, Powell, Rehnquist
Blackmun, Rehnquist
Search of suitcase in trunk of car not within auto exception Arrest under statute later found unconstitutional valid under 4A; search incident to arrest proper; evidence admissible Encounter was seizure without reasonable suspicion; 4A barred arrest based on statute requiring identification
Against 4A
58
Against 4A
59
Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens Rehnquist, Burger, Stewart, White, Blackmun, Powell Brennan, Marshall, Stevens
For 4A
60
Baker v. McCollan, 443 U.S. 137 (1979) (6-3) Ybarra v. Illinois, 444 U.S. 85 (1979) (6-3) United States v. Crews, 445 U.S. 463 (1980) (8-0)
Detention pursuant to valid warrant despite protests of mistaken identity/innocence does not violate due process Frisk of bar patron based on SW for bar for narcotics unreasonable In-court identification of defendant not subject to suppression due to illegal arrest
Neutral on 4A - 4A compliance used to deny DP claim Against 4A
61
Dissent - Wrote Dissent Majority - Voted with Majority (joined concurrence in result)
Stewart, Brennan, White, Marshall, Powell, Stevens Brennan, Burger, Stewart, White, Blackmun, Powell, Rehnquist, Stevens
Burger, Blackmun, Rehnquist
62
Against 4A
455
456
CASE 63 Payton v. New York, 445 U.S. 573 (1980) (6-3) United States v. Mendenhall, 446 U.S. 544 (1980) (5-4)
REHNQUIST POSITION/ROLE Dissent - Wrote Dissent
MAJORITY JUSTICES Stevens, Brennan, Stewart, Marshall, Blackmun, Powell Stewart, Burger, Blackmun, Powell, Rehnquist
DISSENTING JUSTICES Burger, White, Rehnquist
HOLDING Entry of suspected felons home to arrest requires arrest warrant and PC to believe felon at home Encounter with suspect in airport reasonable either because not a seizure or reasonable suspicion to stop
64
Majority - Joined lead opinion
Brennan, White, Marshall, Stevens
Against 4A
65
United States v. Majority - Voted with Havens, 446 U.S. Majority 620 (1980) (5-4)
White, Burger, Blackmun, Powell, Rehnquist
Brennan, Stewart, Illegally obtained evidence Marshall, Stevens admissible to impeach defendants testimony elicited on proper crossexamination
Against 4A
66
Walter v. United States, 447 U.S. 649 (1980) (5-4) United States v. Payner, 447 U.S. 727 (1980) (6-3)
Stevens, Brennan, Stewart, White, Marshall Powell, Burger, Stewart, White, Rehnquist, Stevens
Burger, Warrantless examination of Against 4A Blackmun, Powell, film contents by exhibiting Rehnquist them was a search and was unreasonable Brennan, Marshall, Blackmun Bank customers lacked privacy interests in bankers briefcase; could not object to search even though deliberate violation of 4A Against 4A
67
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68
United States v. Salvucci, 448 U.S. 83 (1980) (7-2) Rawlings v. Kentucky, 448 U.S. 98 (1980) (7-2)
Rehnquist, Burger, Stewart, White, Blackmun, Powell, Stevens Rehnquist, Burger, Stewart, White, Blackmun, Powell, Stevens
Brennan, Marshall
Automatic standing doctrine for exclusionary rule overruled Ownership of property seized only a factor, not sufficient to establish privacy interest in place searched; statements attenuated from detention Suspect was seized without reasonable suspicion in airport in violation of 4A
Against 4A
69
Brennan, Marshall
Against 4A
70
Reid v. Georgia, 448 U.S. 438 (1980) (8-1)
Per Curiam Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Stevens Per Curiam Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens
Rehnquist
Against 4A
71
Colorado v. Bannister, 449 U.S. 1 (1980) (9-0)
Warrant not needed to Against 4A seize items from lawfully stopped car when there was PC to seize them; automobile exception applied Stop of vehicle justified by reasonable suspicion; intrusion reasonably related to justification Against 4A
72
United States v. Cortez, 449 U.S. 411 (1981) (9-0)
457
458
CASE 73 Steagald v. United States, 451 U.S. 204 (1981) (7-2) Donovan v. Dewey, 452 U.S. 594 (1981) (8-1) Michigan v. Summers, 452 U.S. 692 (1981) (6-3) Robbins v. California, 453 U.S. 420 (1981) (6-3) New York v. Belton, 453 U.S. 454 (1981) (6-3)
REHNQUIST POSITION/ROLE Dissent - Wrote Dissent
MAJORITY JUSTICES Marshall, Burger, Brennan, Stewart, Blackmun, Powell, Stevens Marshall, Burger, Brennan, White, Blackmun, Powell, Rehnquist, Stevens Stevens, Burger, White, Blackmun, Powell, Rehnquist Stewart, Burger, Brennan, White, Marshall, Powell Stewart, Burger, Blackmun, Powell, Rehnquist, Stevens
DISSENTING JUSTICES White, Rehnquist
HOLDING Home entry to arrest suspected felon requires SW to intrude on privacy interest of third person not named in arrest warrant Warrantless inspections of mines and quarries reasonable under 4A because regulated
74
Stewart
Against 4A
75
Brennan, Stewart, Detention of home occupant Against 4A Marshall during execution of SW for contraband permissible Blackmun, Rehnquist, Stevens Brennan, White, Marshall Warrantless searches of packages in vehicle not reasonable under automobile exception Search of vehicle passenger compartment reasonable incident to arrest of recent occupant Against 4A
76
77
Against 4A
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78
Washington v. Chrisman, 455 U.S. 1 (1982) (6-3) United States v. Ross, 456 U.S. 798 (1982) (6-3) Taylor v. Alabama, 457 U.S. 687 (1982) (5-4) Michigan v. Thomas, 458 U.S. 259 (1982) (7-2)
Burger, Blackmun, Powell, Rehnquist, Stevens, O'Connor
White, Brennan, Marshall
Officer may enter residence to monitor arrestee who requested and was granted permission to enter to obtain identification Search of container found in car during search fell within automobile exception
Against 4A
79
Stevens, Burger, Blackmun, Powell, Rehnquist, O'Connor Marshall, Brennan, White, Blackmun, Stevens Per Curiam (summary reversal) -Burger, White, Blackmun, Powell, Rehnquist, Stevens, OConnor Rehnquist, Burger, Brennan, White, Marshall, Blackmun, Powell, Stevens, O'Connor White, Brennan, Marshall, Powell, Stevens
Brennan, White, Marshall
Against 4A
80
Burger, Powell, Rehnquist, OConnor Brennan, Marshall wanted to set for oral argument
Confession obtained after Against 4A illegal arrest not admissible under the attenuation exception Search of car in police custody valid under automobile exception Against 4A
81
82
United States v. Knotts, 460 U.S. 276 (1983) (9-0)
Tracking by beeper of public movements not a 4A search
Against 4A
83
Florida v. Royer, 460 U.S. 491 (1983) (5-4)
Burger, Blackmun, Rehnquist, O'Connor
Movement of suspect after valid stop beyond scope of detention on reasonable suspicion
Against 4A
459
460
CASE 84 Texas v. Brown, 460 U.S. 730 (1983) (9-0)
MAJORITY JUSTICES Rehnquist, Burger, Brennan, White, Marshall, Blackmun, Powell, Stevens, O'Connor Rehnquist, Burger, White, Blackmun, Powell, O'Connor
DISSENTING JUSTICES
HOLDING During valid stop, officers inspection of vehicle interior with flashlight did not violate 4A; seizure of balloon valid under plain view doctrine
85
Illinois v. Gates, 462 U.S. 213 (1983) (6-3)/(5-4)
Overruled Aguilar-Spinelli two-pronged test for hearsay-based PC assessments; replaced with totality approach Customs officer boarding of boats and inspection of documents were reasonable without reasonable suspicion Inventory of arrestee reasonable when arrestee was to be incarcerated, standard procedures followed
Against 4A
86
United States v. VillamonteMarquez, 462 U.S. 579 (1983) (6-3) Illinois v. Lafayette, 462 U.S. 640 (1983) (9-0)
Rehnquist, Burger, White, Blackmun, Powell, O'Connor
Against 4A
87
Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, Stevens, O'Connor
Against 4A
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88
United States v. Place, 462 U.S. 696 (1983) (9-0)
O'Connor, Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, Stevens
(Note: Justices not in full agreement on 4A law; agreed that seizure in case was too extensive) Brennan, Marshall, Stevens
Seizure of luggage too extensive on reasonable suspicion; dog sniffs not searches; inanimate objects may be seized on reasonable suspicion Reopening of container not a search because no substantial likelihood contents changed Limited search of car for weapons reasonable on reasonable suspicion suspect is dangerous and may gain control of weapons
For 4A claimant (Against 4A law on dog sniff and seizure authority) Against 4A
89
Illinois v. Andreas, 463 U.S. 765 (1983) (6-3) Michigan v. Long, 463 U.S. 1032 (1983) (6-3)
Burger, White, Blackmun, Powell, Rehnquist, O'Connor OConnor, Burger, White, Blackmun, Powell, Rehnquist
90
Against 4A
91
Michigan v. Dissent - Wrote Clifford, 464 U.S. Dissent 287 (1984) (5-4)
Powell, Brennan, White, Marshall, Stevens
Burger, Blackmun, Rehnquist, O'Connor
Administrative warrant Against 4A sufficient to reenter home after fire if to determine cause; criminal warrant needed if to gather evidence Warrantless entry of public lobby of commercial premises to serve subpoena did not violate 4A Against 4A
92
Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984) (9-0)
Rehnquist, Burger, Brennan, White, Marshall, Blackmun, Powell, Stevens, O'Connor
461
462
CASE 93 United States v. Jacobsen, 466 U.S. 109 (1984) (7-2) Oliver v. United States, 466 U.S. 170 (1984) (6-3) INS v. Delgado, 466 U.S. 210 (1984) (7-2)
MAJORITY JUSTICES Stevens, Burger, White, Blackmun, Powell, Rehnquist, O'Connor Powell, Burger, White, Blackmun, Rehnquist, O'Connor Rehnquist, Burger, White, Blackmun, Powell, Stevens, O'Connor
HOLDING Neither reopening of package nor chemical field test was a 4A search Open fields doctrine affirmed; no REP in private lands beyond curtilage Workers not seized during INS visit to workplace even though INS agents were stationed at exits and individual workers were questioned Car subject to search under auto exception despite being in custody of authorities
94
Against 4A
95
Brennan, Marshall
Against 4a
96
Florida v. Meyers, 466 U.S. 380 (1984) (6-3)
Per Curiam Burger, White, Blackmun, Powell, Rehnquist, O'Connor Per Curiam Burger, White, Blackmun, Powell, Rehnquist, OConnor, Stevens
Stevens, Brennan, Marshall dissent from grant of certiorari/ summary disposition Brennan, Marshall dissent from summary disposition
Against 4A
97
Massachusetts v. Upton, 466 U.S. 727 (1984) (7-2)
Totality of circumstances, Against 4A not two-pronged test, is standard for judging whether PC exists; affidavit in case sufficient to establish PC
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98
Welsh v. Wisconsin, 466 U.S. 740 (1984) (6-2-1)
Brennan, Marshall, Blackmun, Powell, Stevens, O'Connor
White, Rehnquist, Burger (WR wanted to dismiss writ as improvidently granted) Brennan, Marshall, Blackmun, Stevens Brennan, Marshall, Stevens
Exigent circumstances did not justify home entry to apprehend drunk driving suspect/obtain evidence
Against 4A
99
Hudson v. Palmer, 468 U.S. 517 (1984) (5-4) United States v. Karo, 468 U.S. 705 (1984) (6-3)
Burger, White, Powell, Rehnquist, O'Connor White, Burger, Blackmun, Powell, Rehnquist, O'Connor
Search of prison cell not regulated by 4A; no REP for prisoner in cell
Against 4A
100
Majority - Joined Concurrence
Transfer of beeper was not For & Against a search; monitoring beeper 4A in home was a search; SW supported by PC without information from monitoring; evidence untainted/admissible Securing house pending issuance of SW did not taint later searches pursuant to warrant Adopted objectively reasonable reliance on warrant (good faith) exception to ER Against 4A
101
Segura v. United States, 468 U.S. 796 (1984) (5-4) United States v. Leon, 468 U.S. 897 (1984) (6-3)
Burger, White, Powell, Rehnquist, O'Connor White, Burger, Blackmun, Powell, Rehnquist, O'Connor
Brennan, Marshall, Blackmun, Stevens Brennan, Marshall, Stevens
102
Against 4A
463
464
CASE 103 Massachusetts v. Sheppard, 468 U.S. 981 (1984) (7-2) INS v. LopezMendoza, 468 U.S. 1032 (1984) (5-4) Florida v. Rodriguez, 469 U.S. 1 (1984) (6-3) Thompson v. Louisiana, 469 U.S. 17 (1984) (9-0)
MAJORITY JUSTICES White, Burger, Blackmun, Powell, Rehnquist, Stevens, O'Connor OConnor, Burger, Blackmun, Powell, Rehnquist
HOLDING Reasonable reliance on warrant exception to ER applicable to insufficiently particular warrant Exclusionary rule did not apply in civil deportation hearing to bar the prospective deportees admission Initial contact in airport concourse was consensual; assuming it became a seizure, it was justified by articulable suspicion No murder scene exception to SW requirement; may render aid to one in need of assistance, etc.
104
Against 4A
105
Per Curiam Burger, White, Blackmun, Powell, Rehnquist, OConnor Per Curiam Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, OConnor, Stevens O'Connor, Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, Stevens
Against 4A
106
For 4A
107
United States v. Hensley, 469 U.S. 221 (1985) (9-0)
Stop based on flyer providing reasonable suspicion of a completed felony reasonable under Terry extension
Against 4A
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108
New Jersey v. T.L.O., 469 U.S. 325 (1985) (6-3) United States v. Johns, 469 U.S. 478 (1985) (7-2) United States v. Sharpe, 470 U.S. 675 (1985) (7-1-1) Winston v. Lee, 470 U.S. 753 (1985) (9-0)
White, Burger, Blackmun, Powell, Rehnquist, OConnor O'Connor, Burger, White, Blackmun, Powell, Rehnquist, Stevens Burger, White, Marshall, Blackmun, Powell, Rehnquist, O'Connor Brennan, Burger, White, Marshall, Blackmun, Powell, Rehnquist, Stevens, O'Connor White, Burger, Brennan, Marshall, Blackmun, Rehnquist, Stevens, O'Connor
Brennan, Marshall, Stevens concurring and dissenting Brennan, Marshall
School official search of students permissible on reasonable suspicion Automobile exception applicable despite delay in searching packages in car Twenty-minute detention based on reasonable suspicion not unreasonable where officers were diligent, not dilatory
Against 4A
109
Against 4A
110
Brennan, Stevens (on procedural grounds)
Against 4A
111
Surgical intrusion into body For 4A too intrusive to be reasonable without more than PC; required a compelling need Transportation of suspect to police station without probable cause or judicial order was unreasonable For 4A
112
Hayes v. Florida, 470 U.S. 811 (1985) (8-0)
465
466
CASE 113 Tennessee v. Garner, 471 U.S. 1 (1985) (6-3)
REHNQUIST POSITION/ROLE Dissent - Joined Dissent
MAJORITY JUSTICES White, Brennan, Marshall, Blackmun, Powell, Stevens
DISSENTING JUSTICES Burger, Rehnquist, O'Connor
HOLDING
R=FOR or AGAINST 4A
Seizure of suspect by Against 4A deadly force unreasonable where no threat, no PC to believe suspect committed offense involving infliction/threatened infliction of serious physical harm Automobile doctrine applies Against 4A to motor home parked in public lot Examination of exposed Against 4A parts of bookstore not violation of REP; purchase of magazine not seizure; even if arrest unreasonable, magazine not excludable Sixteen-hour detention based on reasonable suspicion of alimentary canal drug smuggling reasonable Against 4A
114
California v. Carney, 471 U.S. 386 (1985) (6-3) Maryland v. Macon, 472 U.S. 463 (1985) (7-2)
Burger, White, Blackmun, Powell, Rehnquist, O'Connor O'Connor, Burger, White, Blackmun, Powell, Rehnquist, Stevens
115
Brennan, Marshall
116
United States v. Montoya De Hernandez, 473 U.S. 531 (1985) (7-2)
Rehnquist, Burger, White, Blackmun, Powell, Stevens, O'Connor
Brennan, Marshall
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117
New York v. Class, 475 U.S. 106 (1986) (5-4)
O'Connor, Burger, Blackmun, Powell, Rehnquist
Reaching into car to move papers obscuring VIN was search, but sufficiently unintrusive to be reasonable Higher standard for search warrant for allegedly obscene materials rejected Aerial surveillance of backyard not a search under 4A Aerial surveillance of commercial curtilage by camera not a search Searches of containers in car within inventory exception to SW rule Search of apartment valid; reasonable to mistakenly believe was only one apartment when SW was issued and executed
Against 4A
118
New York v. P.J. Video, Inc., 475 U.S. 868 (1986) (6-3) California v Ciraolo, 476 U.S. 207 (1986) (5-4) Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (5-4) Colorado v. Bertine, 479 U.S. 367 (1987) (7-2) Maryland v. Garrison, 480 U.S. 79 (1987) (6-3)
Rehnquist, Burger, White, Blackmun, Powell, O'Connor Burger, White, Rehnquist, Stevens, O'Connor Burger, White, Rehnquist, Stevens, O'Connor Rehnquist, White, Blackmun, Powell, Stevens, OConnor, Scalia Stevens, Rehnquist, White, Powell, OConnor, Scalia
Against 4A
119
Majority - Voted with Majority Majority - Voted with Majority
Brennan, Marshall, Blackmun, Powell Brennan, Marshall, Blackmun, Powell Brennan, Marshall
Against 4A
120
Against 4A
121
Against 4A
122
Brennan, Marshall, Blackmun
Against 4A
467
468
CASE 123 United States v. Dunn, 480 U.S. 294 (1987) (7-2) Arizona v. Hicks, 480 U.S. 321 (1987) (6-3) Illinois v. Krull, 480 U.S. 340 (1987) (5-4)
MAJORITY JUSTICES White, Rehnquist, Blackmun, Powell, Stevens, OConnor, Scalia Scalia, Brennan, White, Marshall, Stevens Blackmun, Rehnquist, White, Powell, Scalia
HOLDING Barn not within curtilage; look into barn with flashlight not unreasonable search Movement of equipment (turntable) was a search and required probable cause
124
Dissent - Joined Dissents
Rehnquist, Powell, OConnor
Against 4A
125
Brennan, Evidence obtained in Marshall, reasonable reliance on Stevens, OConnor unconstitutional statute not barred by exclusionary rule Brennan, Marshall, Blackmun, Stevens
Against 4A
126
OConnor v. Ortega, 480 U.S. 709 (1987) (5-4)
OConnor, Rehnquist, White, Powell, Scalia
Work-related intrusions on Against 4A employee areas by public employers governed by standard of reasonableness; neither SW nor PC required Search pursuant to statute was within exception for administrative inspections of closely regulated businesses Against 4A
127
New York v. Burger, 482 U.S. 691 (1987) (6-3)
Blackmun, Rehnquist, White, Powell, Stevens, Scalia
Brennan, Marshall, OConnor
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Griffin v. Wisconsin, 483 U.S. 868 (1987) (5-4) California v. Greenwood, 486 U.S. 35 (1988) (6-2) Michigan v. Chesternut, 486 U.S. 567 (1988) (9-0)
Scalia, Rehnquist, White, Powell, O'Connor
Brennan, Marshall, Blackmun, Stevens
Search of probationers home under statute requiring reasonable grounds instead of PC was constitutional Inspection of trash at curb not a 4A search
Against 4A
129
White, Rehnquist, Brennan, Blackmun, Stevens, Marshall O'Connor, Scalia Blackmun, Rehnquist, Brennan, White, Marshall, Stevens, O'Connor, Scalia, Kennedy Scalia, Rehnquist, White, Blackmun,
Against 4A
130
Following suspect did not constitute a seizure under 4A
Against 4A
131
Murray v. United States, 487 U.S. 533 (1988) (4-3)
Marshall, Independent source Stevens, O'Connor exception applies to evidence once discovered; applicable if information not used to obtain SW and if decision to get SW not prompted by unreasonable entry Brennan, Marshall, Blackmun, Stevens Aerial surveillance of greenhouse by helicopter not a search/no violation of REP
Against 4A
132
Florida v. Riley, 488 U.S. 445 (1989) (5-4)
White, Rehnquist, O'Connor, Scalia, Kennedy
Against 4A
469
470
CASE 133 Brower v. Inyo County, 489 U.S. 593 (1989) (9-0)
MAJORITY JUSTICES Scalia, Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Kennedy
DISSENTING JUSTICES
HOLDING Placement of roadblock effected seizure of defendant; 4A claim stated
R=FOR or AGAINST 4A For 4A
134
Skinner v. Railway Labor Executives' Assn, 489 U.S. 602 (1989) (7-2) National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (5-4) United States v. Sokolow, 490 U.S. 1 (1989) (7-2) Graham v. Connor, 490 U.S. 386 (1989) (9-0)
Kennedy, Brennan, Rehnquist, White, Marshall Blackmun, Stevens, O'Connor, Scalia Kennedy, Rehnquist, White, Blackmun, O'Connor Brennan, Marshall, Stevens, Scalia
Railroad random drug testing program reasonable
Against 4A
135
Customs Service random drug testing program reasonable
Against 4A
136
Rehnquist, White, Brennan, Blackmun, Stevens, Marshall O'Connor, Scalia, Kennedy Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy
Agents had reasonable suspicion for stop of suspect; no requirement of one suspicious factor Fourth Amendment is the basis for judging excessive force claims based on seizure of a person
Against 4A
137
Neutral on 4A
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138
James v. Illinois, 493 U.S. 307 (1990) (5-4) United States v. VerdugoUrquidez, 494 U.S. 259 (1990) (6-3) Maryland v. Buie, 494 U.S. 325 (1990) (7-2)
Brennan, White, Marshall, Blackmun, Stevens Rehnquist, White, Stevens, O'Connor, Scalia, Kennedy
Rehnquist, O'Connor, Scalia, Kennedy Brennan, Marshall, Blackmun
Evidence obtained in violation of 4A not admissible to impeach defense witness Search of Mexican citizens home in Mexico not governed by 4A under circumstances of case Protective sweep following in-home arrest permissible on reasonable suspicion home harbors person posing danger
Against 4A
139
Against 4A
140
White, Rehnquist, Brennan, Blackmun, Stevens, Marshall O'Connor, Scalia, Kennedy Per Curiam Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy Marshall dissented from summary disposition, but agreed on 4A merits
Against 4A
141
Smith v. Ohio, 494 U.S. 541 (1990) (9-0)/(8-1)
Search of bag that preceded For 4A and provided grounds for arrest not a valid search incident to arrest
142
Florida v. Wells, 495 U.S. 1 (1990) (9-0)
Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy
Inventory invalid where police had no policy at all regulating searches of containers in cars
For 4A
471
472
CASE 143 New York v. Harris, 495 U.S. 14 (1990) (5-4)
MAJORITY JUSTICES White, Rehnquist, O'Connor, Scalia, Kennedy
DISSENTING JUSTICES Brennan, Marshall, Blackmun, Stevens Rehnquist, Blackmun
HOLDING ER does not bar statements made outside home after arrest in home without warrant, but with PC to arrest Overnight guest has privacy interest entitling him to rely on ER; no exigency justified warrantless entry Plain view doctrine does not require inadvertent discovery of evidence seized
144
Minnesota v. Olson, 495 U.S. 91 (1990) (7-2)
Dissented (without opinion)
White, Brennan, Marshall, Stevens, O'Connor, Scalia, Kennedy Stevens, Rehnquist, White, Blackmun, O'Connor, Scalia, Kennedy White, Rehnquist, Blackmun, O'Connor, Scalia, Kennedy Rehnquist, White, Blackmun, O'Connor, Scalia, Kennedy
Against 4A
145
Horton v. California, 496 U.S. 128 (1990) (7-2) Alabama v. White, 496 U.S. 325 (1990) (6-3) Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) (6-3)
Brennan, Marshall
Against 4A
146
Tip as corroborated had sufficient indicia of reliability to justify stop of vehicle Suspicionless seizure at drunk driving roadblock was reasonable
Against 4A
147
Against 4A
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148
Illinois v. Rodriguez, 497 U.S. 177 (1990) (6-3) California v. Hodari D., 499 U.S. 621 (1991) (7-2) County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (5-4) Florida v. Jimeno, 500 U.S. 248 (1991) (7-2) California v. Acevedo, 500 U.S. 565 (1991) (6-3) Florida v. Bostick, 501 U.S. 429 (1991) (6-3)
Scalia, Rehnquist, Blackmun, O'Connor, Kennedy Scalia, Rehnquist, White, Blackmun, O'Connor, Kennedy, Souter O'Connor, Rehnquist, White, Kennedy, Souter
Search reasonable if officers reasonably believe consenter has common authority Suspect not seized by show of authority unless reasonable person would not feel free to leave and suspect submits Judicial determination of PC within forty-eight hours after arrest is presumptively prompt/ reasonable Scope of consent search determined by standard of objective reasonableness Containers in vehicles fall within automobile exception as long as there is PC to search Passengers on busses not per se seized; seizure depends on whether reasonable person would feel free to decline requests or terminate encounter
Against 4A
149
Marshall, Stevens
Against 4A
150
Marshall, Blackmun, Stevens, Scalia
Against 4A
151
Rehnquist, White, Blackmun, O'Connor, Scalia, Kennedy, Souter Blackmun, Rehnquist, O'Connor, Scalia, Kennedy, Souter O'Connor, Rehnquist, White, Scalia, Kennedy, Souter
Marshall, Stevens
Against 4A
152
White, Marshall, Stevens
Against 4A
153
Marshall, Blackmun, Stevens
Against 4A
473
474
CASE 154 Soldal v. Cook County, IL, 506 U.S. 56 (1992) (9-0) United States v. Padilla, 508 U.S. 77 (1993) (9-0)
MAJORITY JUSTICES White, Rehnquist, Blackmun, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas Per Curiam Rehnquist, White, Blackmun, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas White, Rehnquist, Blackmun, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas
DISSENTING JUSTICES
HOLDING
R=FOR or AGAINST 4A
Complaint alleging physical For 4A removal of mobile home sufficiently alleged 4A seizure even without privacy invasion
155
No co-conspirator exception to standing requirement for ER
Against 4A
156
Minnesota v. Dickerson, 508 U.S. 366 (1993) (9-0) United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (5-4) Albright v. Oliver, 510 U.S. 266 (1994) (7-2)
Majority - Wrote Concurrence/Dissent
Squeezing object in pocket of suspect exceeded Terry frisk and required probable cause 4A does not provide sole protection against seizures of property; DP requires notice and opportunity to be heard when property seized for civil forfeiture Arrest without PC does not violate DP; if any right violated it is 4A
For 4A
157
Kennedy, Rehnquist, Blackmun, Stevens, O'Connor, Scalia, Souter, Ginsburg Thomas
Neutral on 4A
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Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg
Blackmun, Stevens
Neutral on 4A
2013]
159
Powell v. Dissent - Joined Nevada, 511 U.S. Dissent 79 (1994) (7-2)
Ginsburg, Rehnquist, Blackmun, Stevens, Thomas OConnor, Scalia, Kennedy, Souter Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer Thomas, Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Ginsburg, Breyer Scalia, Rehnquist, Kennedy, Thomas, Ginsburg, Breyer Rehnquist, Stevens, O'Connor, Kennedy, Souter, Thomas, Ginsburg, Breyer Stevens, OConnor, Souter Stevens, Ginsburg
McLaughlin, which requires judicial determination of PC within 48 hours, applies retroactively Reasonable reliance on clerical error of judicial employee is valid exception to ER; expansion of Leon doctrine Knock-and-announce principle is a presumptive component of the reasonableness of the execution of a search Schools suspicionless drug testing program for student-athletes was reasonable PC determinations subject to de novo on appeal; not under a deferential clear error standard
Against 4A
160
Arizona v. Evans, 514 U.S. 1 (1995) (7-2)
Against 4A
161
Wilson v. Arkansas, 514 U.S. 927 (1995) (9-0)
For 4A
162
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) (6-3) Ornelas v. United States, 517 U.S. 690 (1996) (8-1)
Against 4A
163
Scalia
Neutral on 4A
475
476
CASE 164 Whren v. United States, 517 U.S. 806 (1996) (9-0)
MAJORITY JUSTICES Scalia, Rehnquist, Stevens, O'Connor, Kennedy, Souter, Thomas, Ginsburg, Breyer Per Curiam Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer Per Curiam Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Rehnquist, O'Connor, Scalia, Souter, Thomas, Ginsburg, Breyer
DISSENTING JUSTICES
HOLDING Probable cause is judged objectively, officers subjective motivations (pretexts) are irrelevant
165
Pennsylvania v. Labron, 518 U.S. 938 (1996) (7-2)
Stevens, Ginsburg
Automobile exception applies to all readily mobile vehicles; no need for exigency showing Automobile exception applies to all readily mobile vehicles; no need for exigency showing For consent to be valid/voluntary not per se necessary for officer to tell detainee he is free to go Officers may automatically order passengers out of vehicles during traffic stops
Against 4A
166
Pennsylvania v. Kilgore, 518 U.S. 938 (1996) (7-2)
Stevens, Ginsburg
Against 4A
167
Ohio v. Robinette, 519 U.S. 33 (1996) (8-1) Maryland v. Wilson, 519 U.S. 408 (1997) (7-2)
Stevens
Against 4A
168
Stevens, Kennedy
Against 4A
[VOL. 82:2
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169
Chandler v. Miller, 520 U.S. 305 (1997) (8-1) Richards v. Wisconsin, 520 U.S. 385 (1997) (9-0)
Ginsburg, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer Stevens, Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Thomas, Rehnquist, O'Connor, Scalia, Kennedy Rehnquist, O'Connor, Scalia, Kennedy, Thomas, Breyer
Rehnquist
Random drug testing Against 4A program for political candidates unconstitutional Categorical felony-drug exception to knock-andannounce principle not valid; entry here within knock-and-announce exception Property damage or destruction does not trigger higher standard to justify no-knock entry For 4A law; Against 4A claimant
170
171
United States v. Ramirez, 523 U.S. 65 (1998) (9-0) Pennsylvania Board of Probation v. Scott, 524 U.S. 357 (1998) (5-4) Minnesota v. Carter, 525 U.S. 83 (1998) (6-3)
Against 4A
172
Stevens, Souter, Ginsburg, Breyer
Exclusionary rule inapplicable to parole revocation hearings
Against 4A
173
Stevens, Souter, Ginsburg
Because of limited connections to home, defendants did not have privacy interests, and, therefore, could not object to search of home
Against 4A
477
478
CASE 174 Knowles v. Iowa, 525 U.S. 113 (1998) (9-0)
MAJORITY JUSTICES Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Scalia, Rehnquist, O'Connor, Kennedy, Thomas, Breyer Thomas, Rehnquist, O'Connor, Scalia, Kennedy, Souter, Breyer Rehnquist, Stevens (on 4A), O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer
DISSENTING JUSTICES
HOLDING Search incident to citation for traffic violation not reasonable
175
Wyoming v. Houghton, 526 U.S. 295 (1999) (6-3) Florida v. White, 526 U.S. 559 (1999) (7-2)
Stevens, Souter, Ginsburg
Passengers belongings subject to search under automobile exception as long as there is PC to search Warrantless seizure of car in public place is reasonable based on PC to believe car is forfeitable contraband Media presence during execution of warrant violated 4A; third party presence unreasonable unless in aid of execution of warrant
Against 4A
176
Stevens, Ginsburg
Against 4A
177
Wilson v. Layne, 526 U.S. 603 (1999) (9-0)/(8-1)
Stevens (dissenting on qualified immunity)
For 4A
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178
Hanlon v. Berger, 526 U.S. 808 (1999) (8-1)
Per Curiam Rehnquist, Stevens (on 4A), O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Per Curiam Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg Per Curiam Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Rehnquist, O'Connor, Scalia, Kennedy, Thomas Ginsburg, Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer
Stevens (dissenting on qualified immunity)
Plaintiffs stated claim for 4A violation for media presence, but officials had qualified immunity
For 4A
179
Maryland v. Dyson, 527 U.S. 465 (1999) (7-2)
Stevens, Breyer (agree on 4A law)
Only PC, no SW, needed for Against 4A search of car under automobile exception
180
Flippo v. West Virginia, 528 U.S. 11 (1999) (9-0)
Decision inconsistent with For 4A precedent rejecting murder scene exception to SW rule for homes
181
Illinois v. Wardlow, 528 U.S. 119 (2000) (5-4) Florida v. J.L., 529 U.S. 266 (2000) (9-0)
Was reasonable suspicion to detain suspect based on unprovoked flight in high crime area Tip, even with corroboration, did not have adequate indicia of reliability to support reasonable suspicion for stop and frisk
Against 4A
182
Majority - Joined Concurrence
For 4A
479
480
CASE 183 Bond v. United States, 529 U.S. 334 (2000) (7-2) City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (6-3) Illinois v. McArthur, 531 U.S. 326 (2001) (8-1)
MAJORITY JUSTICES Rehnquist, Stevens, O'Connor, Kennedy, Souter, Thomas, Ginsburg O'Connor, Stevens, Kennedy, Souter, Ginsburg, Breyer
DISSENTING JUSTICES Scalia, Breyer
HOLDING Squeezing of bag in exploratory manner was a search under 4A Roadblocks impermissible if primary programmatic purpose is general interest in crime control; drug interdiction roadblock was unconstitutional Limited warrantless seizure of home was reasonable where PC and reasonable to believe suspect would destroy evidence Suspicionless drug testing of pregnant women unreasonable; not a special needs search divorced from general criminal law enforcement Warrantless arrest for any minor criminal offense committed in officers presence is reasonable
184
Rehnquist, Scalia, Thomas
Against 4A
185
Breyer, Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg
Stevens
Against 4A
186
Ferguson v. City of Charleston, 532 U.S. 67 (2001) (6-3)
Stevens, O'Connor, Kennedy, Souter, Ginsburg, Breyer
Rehnquist, Scalia, Thomas
Against 4A
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Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (5-4)
Souter, Rehnquist, Scalia, Kennedy, Thomas
Stevens, O'Connor, Ginsburg, Breyer
Against 4A
2013]
188
Arkansas v. Sullivan, 532 U.S. 769 (2001) (9-0)
Per Curiam Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Scalia, Souter, Thomas, Ginsburg, Breyer Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Rehnquist, Stevens, O'Connor, Kennedy
Ruling that subjective motive of officer rendered arrest improper was inconsistent with Whrens interpretation of 4A No jurisdiction to review nonfinal ruling of state court that Belton did not apply if arrestee out of car when first approached Thermal imaging of home is a search and is subject to the warrant requirement Search of probationers home based on reasonable suspicion, in accord with probation condition, was reasonable Stop was based on reasonable suspicion when factors evaluated in totality, rather than in isolation, including reasonable inferences of agent
Against 4A
189
Florida v. Thomas, 532 U.S. 774 (2001) (9-0) Kyllo v. United States, 533 U.S. 27 (2001) (5-4) United States v. Knights, 534 U.S. 112 (2001) (9-0) United States v. Arvizu, 534 U.S. 266 (2002) (9-0)
Neutral on 4A
190
Against 4A
191
Against 4A
192
Against 4A
481
482
CASE 193 United States v. Drayton, 536 U.S. 194 (2002) (6-3)
MAJORITY JUSTICES Kennedy, Rehnquist, O'Connor, Scalia, Thomas, Breyer
DISSENTING JUSTICES Stevens, Souter, Ginsburg
HOLDING Passengers not seized during bus encounter even though they were not informed that they were free to refuse consent; their consent was voluntary Under Payton, absent exigent circumstances, police officers warrantless entry of home violated 4A
194
Kirk v. Louisiana, 536 U.S. 635 (2002) (9-0)
Per Curiam Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Thomas, Rehnquist, Scalia, Kennedy, Breyer Per Curiam Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Stevens, OConnor, Souter, Ginsburg
For 4A
195
Board of Education v. Earls, 536 U.S. 822 (2002) (5-4) Kaupp v. Texas, 538 U.S. 626 (2003) (9-0)
Schools random drug testing policy for students in extracurricular activities was reasonable Absent showing that confession made after defendants illegal arrest was a sufficient act of free will to purge the taint, confession had to be suppressed
Against 4A
196
For 4A
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197
United States v. Banks, 540 U.S. 31 (2003) (9-0)
Souter, Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Thomas, Ginsburg, Breyer Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Breyer, Rehnquist, O'Connor, Scalia, Kennedy, Thomas, Breyer Stevens, OConnor, Souter, Ginsburg, Breyer Stevens, Souter, Ginsburg
Circumstances justified exception to knock-andannounce rules reasonable wait time requirement Finding contraband in car and other facts gave rise to PC to arrest any/all of the three occupants of car
Against 4A
198
Maryland v. Pringle, 540 U.S. 366 (2003) (9-0)
Against 4A
199
Illinois v. Lidster, 540 U.S. 419 (2004) (6-3) Groh v. Ramirez, 540 U.S. 551 (2004) (5-4)/(7-2 on 4A merits)
Suspicionless information Against 4A seeking checkpoint stops in order to find witnesses to accident were reasonable SW that failed to describe items to be seized invalid despite descriptions in affidavit; search under invalid SW unreasonable For 4A
200
Dissent - Joined Dissents
Rehnquist, Kennedy (qualified immunity); Thomas, Scalia (no 4A violation and qualified immunity)
201
United States v. Flores-Montano, 541 U.S. 149 (2004) (9-0)
Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer
Dismantling of car at border without articulable suspicion reasonable as border search
Against 4A
483
484
CASE 202 Thornton v. United States, 541 U.S. 615 (2004) (7-2) Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004) (5-4)
MAJORITY JUSTICES Rehnquist, O'Connor, Scalia, Kennedy, Thomas, Ginsburg, Breyer Kennedy, Rehnquist, O'Connor, Scalia, Thomas Scalia, Stevens, OConnor, Kennedy, Souter, Thomas, Ginsburg, Breyer Per Curiam Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Stevens, OConnor, Scalia, Kennedy, Thomas, Breyer
DISSENTING JUSTICES Stevens, Souter
HOLDING Search of vehicle incident to arrest of recent occupant valid though arrestee first approached outside vehicle Reasonable to require validly detained suspect to identify self and to arrest him for failing to comply with requirement Arrest valid if objective facts known provide PC to arrest for offense whether or not offense was closely related to offense stated as the basis for the arrest
203
Against 4A
203a Devenpeck v. Alford, 543 U.S. 146 (2004) (8-0)
REHNQUIST DID NOT PARTICIPATE
WR DID NOT PARTICIPATE
204
Brosseau v. Haugen, 543 U.S. 194 (2004) (8-1)
Stevens
Officer entitled to qualified immunity because prior law did not clearly establish shooting suspect would violate 4A; Court did not decide reasonableness Dog sniff of lawfully stopped car does not constitute search; does not require justification
Neutral on 4A
204a Illinois v. Caballes, 543 U.S. 405 (2005) (6-2)
REHNQUIST DID NOT PARTICIPATE
Souter, Ginsburg
WR DID NOT PARTICIPATE
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205
Muehler v. Mena, 544 U.S. 93 (2005) (9-0)
Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer
Detention and handcuffing of occupant during SW execution reasonable; questioning about immigration status not a seizure/no reasonable suspicion required
Against 4A
FOURTH AMENDMENT DECISIONS 485
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THE IMPORTANCE OF JAMES OTIS
Thomas K. Clancy* I.
Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment,1 and no historical event is more important than James Otiss argument in the Writs of Assistance Case2 in 1761.3 The Writs case and the
* John T. Copenhaver Jr. Visiting Endowed Chair of Law, West Virginia University College of Law, 2012-13. Research Professor, University of Mississippi School of Law, and Director, National Center for Justice and the Rule of Law. (c) Copyright, Thomas K. Clancy, 2012. This essay is based on remarks made at search and seizure conferences for judges on the occasion of the 250th anniversary of the Writs case. 1 E.g., United States v. Jones, 132 S. Ct. 945 (2012); Atwater v. City of Lago Vista, 532 U.S. 318, 346 (2001). 2 This litigation has many names but no formal designation. 3 E.g., Stanford v. Texas, 379 U.S. 476, 482 (1965) (Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance.); JACOB B. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT 19 (1966) (The Fourth Amendment was the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England.); TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 38 (1969) (The writs of assistance were anathema in the colonies,
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competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles.4 No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment.5 More fundamentally, Otiss importance, then and now, stems not from the particulars of his argument; instead, he played, and should continue to play, an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. In contrast to the statist views of Chief Justice Rehnquist, detailed elsewhere in this edition of the Mississippi Law Journal, Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars.6 This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.7
and Otis argument against them was well known among the founding fathers.). Numerous sources quote Otiss arguments. E.g., Payton v. New York, 445 U.S. 573, 608-09 (1980) (White, J., dissenting); Gerstein v. Pugh, 420 U.S. 103, 116 n.17 (1975). 4 See M. H. SMITH, THE WRITS OF ASSISTANCE CASE 7 (1978) (In that case, the American tradition of constitutional hostility to general powers of search first found articulate expression.). 5 E.g., WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 382 (2009) (Otiss proclamation that only specific writs were legal was the first recorded declaration of the central idea to the specific warrant clause.). 6 The National Center for Justice and the Rule of Law sponsored the James Otis Lectures, with articles written by noted scholars. Please visit www.olemiss.edu/depts/ncjrl/FourthAmendment/fai_OtisLectures.html to access the articles. 7 The Fourth Amendment provides: 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. U.S. CONST. amend. IV.
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Born in Great Marshes (now West Barnstable), Massachusetts, James Otis would devote his life to the law, as his father and grandfather had done before, becoming a revered trial advocate and legal orator in colonial Massachusetts.8 He was appointed to the coveted position of Advocate General of the ViceAdmiralty Court at just thirty-one years of age, a position he would later resign to champion the cause against the Crowns use of writs of assistance. Based on his argument in the Writs case in 1761, the people perceived Otiss actions as springing from a sincere concern for the liberties of the people and elected him as their representative in the next election to the Massachusetts House of Representatives.9 Thomas Hutchinson, who was the Chief Justice presiding at the Writs case and the author of an important historical account of Massachusetts, wrote that Otiss efforts encouraged those in opposition to the government and taught the people that the practices were incompatible with English liberties.10 According to John Adams, the case brought Otis Jr. boundless popularity.11 For the next decade, Otis was a leader of the opposition, seeking to establish and protect the rights of the colonists. No one was more important in that era.12 Otis was
8 See generally WILLIAM TUDOR, THE LIFE OF JAMES OTIS, OF MASSACHUSETTS (1823). There are several biographies of Otis. William Tudor, a near contemporary, used then available resources to write the first one. Other biographies often rely on Tudors work. See, e.g., FRANCES BOWEN, LIFE OF JAMES OTIS AND JAMES OGLETHORPE (1844); JOHN C. RIDPATH, JAMES OTIS: THE PRE-REVOLUTIONIST (1898). Another important figure of the era, Samuel Adams, often worked together with Otis; early histories often confused their respective roles on various committees. For one instructive attempt to clarify those roles, see WILLIAM V. WELLS, 1 THE LIFE AND PUBLIC SERVICES OF SAMUEL ADAMS (1865). 9 THOMAS HUTCHINSON, THE HISTORY OF THE PROVINCE OF MASSACHUSETTS BAY (FROM 1749 TO 1774) 95 (1828). 10 Id. at 94-95. 11 WILLIAM J. CUDDIHY, THE F OURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 402 (2008). 12 John Adams summed it up in a letter to William Tudor written in 1818:
I have been young, and now am old, and I solemnly say, I have never known a man whose love of his country was more ardent or sincere; never one, who suffered so much; never one, whose services for any ten years of his life were so important and essential to the cause of his country, as those of Mr. Otis from 1760 to 1770.
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repeatedly elected to the House of Representatives in Massachusetts and spoke and wrote forcibly on behalf of the rights of the colonists. He served in many other capacities, often at the head of town meetings and committees,13 leading the opposition to arbitrary British actions and legislation. Otis became widely known and admired in the American colonies14 and widely known but often hated in England.15 Otiss mental health declined as the decade progressed.16 He was physically attacked in 1769 by John Robinson, a customs
Letter from John Adams to William Tudor (Feb. 25, 1818), in 10 THE WORKS OF JOHN ADAMS 291 (Charles F. Adams ed., 1856); see also HUTCHINSON, supra note 9, at 292 (Otis had, for eight or nine years prior to 1772, greater influence than any other member of the Assembly.). 13 For example, at a meeting of the inhabitants of Boston on Nov. 2, 1772, a committee, including Otis, was appointed to state the Rights of the Colonists. JOSIAH QUINCY, JR., REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY, BETWEEN 1761 AND 1772 466 (1865). The committee report, published by order of the town, attacked the writs of assistance as giving absolute and arbitrary power to customs officials to search anywhere they pleased. Id. at 467. The report concluded: Thus our Houses, and even our Bed-Chambers, are exposed to be ransacked, our Boxes, Trunks and Chests broke open, ravaged and plundered, by Wretches, whom no prudent Man would venture to employ even as Menial Servants; whenever they are pleased to say they suspect there are in the House, Wares, [etc.] for which the Duties have not been paid. Flagrant instances of the wanton exercise of this Power, have frequently happened in this and other seaport Towns . . . . These Officers may under the color of Law and the cloak of a general warrant, break through the sacred Rights of the Domicil, ransack Mens [sic] Houses, destroy their Securities, carry off their Property, and with little Danger to themselves commit the most horrid Murders. Id. at 467; see also Warden v. Hayden, 387 U.S. 294, 315 (1967) (Douglas, J., dissenting). 14 One of Otiss correspondents was John Dickinson. See, e.g., TUDOR, supra note 8, at 322. Appearing in the Philadelphia press in 1768, and subsequently widely available, were Dickinsons letters by a Farmer in Pennsylvania, which criticized the writs of assistance as dangerous to freedom, and expressly contrary to the common law, which ever regarded a mans house as his castle, or a place of perfect security. SMITH, supra note 4, at 492-94. 15 See., e.g., TUDOR, supra note 8, at xviii, 172, 183-84 n.* (1823). 16 John Adams recounted, in his diary, the increasing mental problems of Otis in the years leading up to the Revolution. E.g., 1 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 270 (L.H. Butterfield, ed. 1961) (diary entry for December 23, 1765, recounting Otiss emotional instability and inexplicable Passage in his Conduct); 2 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 50 (L.H. Butterfield ed., 1961) (entry for Aug. 22 and 23, 1771, observing that Otis Gestures and Motions are very whimsical, his
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official, suffering a serious head wound.17 By 1770, his mental health had so deteriorated that Otiss influence effectively ended. He withdrew to the country, where he spent most of the remainder of his life. In 1783, he was struck by lightning and died.18 With few notable exceptions, virtually none of his correspondence or written works survive.19 Otiss legacyfor the purpose of the Fourth Amendmentis the Writs case, and it is to that importance I now turn.
III.
Law enforcement officials in America and in England in the period preceding the American Revolution did not have broad inherent authority to search and seize; such actions required authorization and the warrant system was the primary means to confer that authority.20 Warrantless searches and seizures were rare.21 Only one type of warrantless seizure may have been common, the seizure of a suspected felon.22 Based on the lack of warrantless searches and seizures and the fact that the only
Imagination is disturbedhis Passions all roiled); id. at 65. (diary entry for Oct. 27, 1772 describing Otis as looking and acting as wildly as ever he did). 17 TUDOR, supra note 8, at 362-65 (1823). 18 Id. at 474-85. 19 Id. at xviii. A few important publications survive. In 1765, Otis wrote A Vindication of the British Colonies. Otis identified in that document the absolute rights of men: The absolute liberties of Englishmen, as frequently declared in Parliament, are principally three. 1. The right of personal security, 2. personal liberty, and 3. private property. Reprinted in PAMPHLETS OF THE AMERICAN REVOLUTION 558 (Bernard Bailyn ed., 1965). A repeated theme of Otis was his opposition to arbitrary actions of the government. See, e.g., TUDOR, supra note 8, at 127 (quoting from Otiss pamphlet entitled A Vindication of the Conduct of the House of Representatives of the Province of Massachusetts Bay). 20 E.g., Thomas Y. Davies, Recovering The Original Fourth Amendment , 98 MICH. L. REV. 547, 627-34 (1999); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 294 (1984). But see Payton v. New York, 445 U.S. 573, 607-08 (1980) (White, J., dissenting) (arguing that constables had broad powers to arrest and that the warrant system acted to expand those powers). 21 See, e.g., United States v. Chadwick, 433 U.S. 1, 8 (1977) (explaining that colonials did not oppose warrantless searches in public places because such searches were not in issue at the time); James J. Tomkovicz, California v. Acevedo: The Walls Close in on the Warrant Requirement, 29 AM. CRIM. L. REV. 1103, 1133 (1992) ([W]arrantless searchesother than [searches] incident to arrest, were not a fact of colonial life.). 22 TAYLOR, supra note 3, at 27-28; see generally 2 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 85-104 (1847).
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persons searched or seized without a warrant usually were suspected felons, those actions were not the cause of public outcry and litigation.23 Several forms of warrants existed in England and in the American colonies in the decades preceding the American Revolution.24 One form of practice included the common law warrant to search for stolen goods.25 Another form of practice general warrants and writs of assistancecame to be viewed as systematic exploitation of the warrant process, permitting the executive authorities to engage in wide-ranging suspicionless searches and seizures.26 Of particular note was legislation enabling customs searches and seizures, authorizing searches without suspicion anywhere the searcher desired to look.27 Pursuant to the statute, writs of assistance were issued. The writ was a simple directive in the form of a document in the name of the king that ordered a wide variety of persons to help the
23 TAYLOR, supra note 3, at 39; see also Joseph D. Grano, Rethinking the Fourth Amendment Warrant Requirement, 19 AM. CRIM. L. REV. 603, 621 (1982) ([H]istory indicates that warrantless felony arrests did not cause consternation.); cf. Chadwick, 433 U.S. at 8 (The absence of a contemporary outcry against warra ntless searches in public places was because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial America.). 24 See, e.g., TAYLOR, supra note 3, at 24 (observing that scholars seeking the origin of search and seizure warrants have traveled into a foggy land and that their origin seems based on several fairly distinct forms of English legal practice). 25 SMITH, supra note 4, at 17; TAYLOR, supra note 3, at 24. 26 See, e.g., LANDYNSKI, supra note 3, at 19-41; NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 13-78 (1937); TAYLOR, supra note 3, at 23-50. 27 Section 5(2) of the Act of Frauds of 1662 provided:
And it shall be lawful to or for any Person or Persons, authorized by Writ of Assistance under the Seal of his Majestys Court of Exchequer, to take a Constable . . . or other publick Officer inhabiting near unto the Place, and in the Day-time to enter . . . any House . . . or other Place, and in Case of Resistance to break open Doors, Chests, Trunks and other Package, there to seize, and from thence to bring, any Kind of Goods or Merchandize whatsoever, prohibited and uncustomed, and to put and secure the same in his Majestys Store-house. SMITH, supra note 4, at 43, 535-36. The legislation did provide some limitations: the searcher had to be an authorized person and accompanied by a law enforcement officer; the search had to be performed during daylight hours; and only in the case of resistance could doors, chests, and other locked areas or containers be broken. Id. at 25-31.
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customs man make his search.28 Writs were not issued as a result of any information that contraband was stored at a specified place; instead, the customs officials could search wherever they chose. The discretion delegated to the official was therefore practically absolute and unlimited.29 The writs were akin30 to permanent search warrants placed in the hands of custom officials: they might be used with unlimited discretion and were valid for the duration of the life of the sovereign.31 Smuggling was a widespread practice in the American colonies and writs of assistance were a principal means of combating the practice, at least in Massachusetts.32 In 1760, new writs of assistance were requested following the expiration of the previously-issued writs due to the death of the King. A group of Boston merchants opposed the proposed writs, retaining James Otis to represent their cause. There were two hearings on the question. The key issue at the first hearing on the proposed writs, and the question upon which the case ultimately turned, was whether the Superior Court should continue to grant the writs in general and open-ended formas a species of general warrants33or whether it should limit the writs to a single occasion based on particularized information given under oath.34 The courtroom was the Old State House in Boston. Thomas Hutchinson was the Chief Justice. James Otis and Oxenbridge
Id. at 29. LASSON, supra note 26, at 54. 30 Writs of assistance usually have been considered as general search warrants but some have disputed that characterization because the power to search inhered in the officers by virtue of their commission, and the writs were merely judicial orders empowering the customs officials to summon the sheriff or constable to keep the peace for the duration of the search. LANDYNSKI, supra note 3, at 32 n.53; see also Berger v. New York, 388 U.S. 41, 58 (1967) (equating the customs writs of assistance to general warrants). But cf. SMITH, supra note 4, at 37-39, 461, 520-21 (citing cases and a 1768 opinion of the English Attorney General and recognizing that a writ of assistance was not a search warrant but merely the vehicle by which statutory power to search was exercised). 31 LANDYNSKI, supra note 3, at 31 (footnote omitted); see also LASSON, supra note 26, at 53-54. The writs expired six months after the death of the sovereign. Id. at 57. 32 LANDYNSKI, supra note 3, at 30. See generally LASSON, supra note 26, at 51-78. Authorities in Massachusetts were more successful in obtaining writs of assistance than in other colonies. See, e.g., SMITH, supra note 4, at 96, 106-07, 115. 33 HUTCHINSON, supra note 9, at 93-94 (1828). 34 QUINCY, supra note 13, at 531-32.
28 29
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Thatcher presented arguments in opposition to the issuance of the writs. Jeremiah Gridley, the attorney general of the Massachusetts Bay Colony, defended the general writs of assistance. John Adams,35 then a young attorney, was in the audience, and wrote the most comprehensive summaries of the arguments.36 After the first hearing,37 the court made inquiries to
Otis studied law in Gridleys office. TUDOR, supra note 8, at 14. Gridley, Thatcher, and Otis became close friends of Adams, who later remarked that he remained friends with the three men till their deaths. 3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 273 (L.H. Butterfield ed., 1961). Indeed, their names appear frequently in Adamss extensive writings; in particular, Adams, Gridley, and Otis were often together in courtrooms, clubs, meetings, and other gatherings. Gridley, during an interview with Adams concerning Adamss qualifications to be sworn to practice in Boston as a lawyer, had, in 1758, given Adams some advice: [P]ursue the Law itself, rather than gain of it. Attend enough to the profits, to keep yourself out of the Briars: but the Law itself should be your great Object. Id. at 272. Adams held Otis in high esteem; he described Otis as by far the most able, manly and commanding Character of his Age at the Bar. Id. at 275. 36 There are four main sources of the arguments. Adams made contemporaneous notes and, a short time after the argument, he wrote an abstract. See Petition of Lechmere, Editorial Note, in 2 LEGAL PAPERS OF JOHN ADAMS 121-23, (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (noting multiple sources of the abstract and reproducing it with notes on its variations); Petition of Lechmere, Adams Abstract of the Argument, in 2 LEGAL PAPERS OF JOHN ADAMS, supra, at 134-35 n.103. Otiss own account came in an article published on January 4, 1762, in the Boston Gazette. Otis did not sign the article, but it has been attributed to him. QUINCY, supra note 13, at 488. The fourth significant source is the history book written by the Chief Justice. See THOMAS HUTCHINSON, THE HISTORY OF THE PROVINCE OF MASSACHUSETTS BAY (FROM 1749 TO 1774) (1828). Adams provided additional materials in letters written toward the end of his life to William Tudor and more than 50 years after the Writs case. The letters are claimed recountings of the details of the argument, intermingled with Adamss comments on a variety of matters. 10 THE WORKS OF JOHN ADAMS, supra note 12, at 289-92, 314-62 (1856) (collecting letters from Adams to Tudor from the summer and fall of 1818). Adams wrote those accounts despite his repeated claims, in the letters and elsewhere during that same time period, that he could not accurately recollect Otiss arguments. E.g., id. at 314, 321, 355. Numerous authorities have examined the inaccuracies and exaggerations of these letters. Petition of Lechmere, Editorial Note, in 2 LEGAL PAPERS OF JOHN ADAMS, supra, at 107 (collecting authorities); QUINCY, supra note 13, at 469 n.1. The Tudor letters are remarkable for what they omit: there is no recounting of Otiss arguments regarding proper search and seizure procedures. Instead, as others have observed, Adams put into Otis mouth the entire body of arguments against the power of Parliament developed in the decade following the Writs case. Petition of Lechmere, Editorial Note, in 2 LEGAL PAPERS OF JOHN ADAMS, supra, at 107. Nonetheless, there are a few comments that shed light. Otis, for example, in one Tudor letter is said to have insisted that the writs were inconsistent with the fundamental law, the natural and constitutional rights of the subjects. Letter from John Adams to William Tudor (June 24, 1818), in 10 THE WORKS
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England about the proper practice and, after learning that general writs were used in England, the court judged sufficient to warrant the like practice in the province.38 Hutchinson succinctly wrote that the opponents of the writs attacked them as of the nature of general warrants.39 Instead of that model, Hutchinson wrote, the opponents argued that the court should adopt what was claimed to be the more modern requirements for warrants to search for stolen goods: issued by a justice of the peace; limited to the places set forth in the warrant; and based on information supporting the search under oath.40 Other sources for the arguments are more detailed. Those sources demonstrate that Otis offered a window into the nature of the individual interests affected by a search and provided a vision of proper search and seizure practices. In his argument, Otis made a variety of points, such as the lack of statutory authority for issuing the writs.41 However, his
JOHN ADAMS, supra note 12, at 323 (1856). He later was said to observe that they were the most tyrannical instruments that ever were invented. Id. at 347. 37 The Writs case was argued in Feb. 1761 and re-argued in Nov. 1761. Adams was present for only the first argument. Petition of Lechmere, Editorial Note, in 2 LEGAL PAPERS OF JOHN ADAMS, supra note 36, at 114-15. The Boston Gazette ran a few short accounts of the controversy but those accounts covered only the second argument in Nov. 1761 and the subsequent issuance of the writs. QUINCY, supra note 13, at 486-88. 38 HUTCHINSON, supra note 9, at 94. 39 Id. at 93. 40 Id. at 93-94. 41 E.g., Petition of Lechmere, Editorial Note, in 2 LEGAL PAPERS OF JOHN ADAMS, supra note 36, at 117-21 (analyzing Otiss arguments on the limits of judicial and legislative authority). This is an important point: Otis not only offered an alternative vision of the proper criteria for warrants to issue, he also argued that courts had the power to find illegal those warrants that did not meet that criteria. Advocates of an undefined reasonableness standard apparently miss that distinction. E.g., Davies, supra note 20, at 689-90. Otis was working within a legal regime where the notion that a court could void a statute as against reason was at best novel and had little support beyond what Coke had asserted in Bonhams Case, (1610) 77 Eng. Rep. 646 (C.P.); 8 Co. Rep. 113b. That question today would be framed to ask whether the statute was constitutional. The Fourth Amendment and the concept of judicial review now gives courts such authority. The separate question concerns what criteria should be employed to assess the reasonableness of the search or seizure. Davies conflates the two questions to support his view that the Framers had no criteria in mind when they inserted the word unreasonable in the Fourth Amendment. Ignored or at least dismissed by Davies is the part of Otiss argument where he offered explicit criteria to measure the legality (now reasonableness) of a search. In that portion of his argument, Otis was not arguing for some undefined concept of reasonableness but, instead, articulated specific criteria to measure the propriety of the writs, that is, the
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main focus was on the dangers to the security of each individual from the uncontrolled authority to search, that customs officials had as a result of the writs and on alternative criteria for the writs to issue.
A. The Right to be Secure

Otis characterized the nature of the individual interest that was implicated when the government searches, that is, the persons security: [E]very householder in this province, will necessarily become less secure than he was before this writ had any existence among us; for by it, a custom house officer or ANY OTHER PERSON has a power given him, with the assistance of a peace officer, to ENTER FORCEFULLY into a DWELLING HOUSE, and rifle every part of it where he shall PLEASE to suspect uncustomed goods are lodg[e]d! Will any man put so great a value on his freehold, after such a power commences as he did before? every man in this province, will be liable to be insulted, by a petty officer, and threat[e]ned to have his house ransackd, unless he will comply with his unreasonable and imprudent demands: Will anyone under such circumstance, ever again boast of british honor or british privilege?42 Adams, in his notes of the argument, wrote that Otis spoke of the fundamental principle of the law that was [t]he Priviledge of House. A Man, who is quiet, is as secure in his House, as a Prince in his Castle[.]43 Adams and other contemporaries repeatedly used the concept of security to describe the quality of the right protected as to each persons life, liberty, and property.44 Recalling Otiss
requirements that regulated the issuance of a common law search warrant for stolen goods. That second question, the criteria that should be utilized to determine if an intrusion is justified, is the important one today. 42 QUINCY, supra note 13, at 489 (formatting in original). 43 Petition of Lechmere, Adams Minutes of the Argument, in 2 LEGAL PAPERS OF JOHN ADAMS, supra note 36, at 125. 44 Letter from John Adams to William Tudor (June 1, 1818), in 10 THE WORKS OF JOHN ADAMS, supra note 12, at 315-16 (1856).
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argument many years later, Adams wrote a letter to William Tudor that Otis examined the acts of trade and demonstrated that they destroyed all our security of property, liberty, and life.45 Another famous champion of liberty of the era, well known to the colonists, was John Wilkes.46 After complaining of the seizure of all his papers under a general warrant seeking evidence of his seditious writings and receiving the reply from the authorities that such papers that did not prove his guilt for seditious libel would be returned, Wilkes countered: I fear neither your prosecution nor your persecution, and will assert the security of my own house, the liberty of my person, and every right of the people, not so much for my own sake, as for the sake of every one of my English fellow subjects.47 That same conceptsecurity was utilized by Adams in Article 14 of the Massachusetts Declaration of Rights and is replicated in the Fourth Amendment.48 More broadly, the concept of security, in contradistinction to the modern notion of privacy, was repeatedly referenced in the framing era as defining the nature of the right that was to be protected in each of the objects ultimately listed in the Amendment.49 The right to be secure was closely associated with property.50 Houses in that era were repeatedly stated to be a mans castle.51
Id. at 316. Thomas K. Clancy, The Framers Intent: John Adams, His Era, and the Fourth Amendment, 86 IND. L.J. 979, 1006-12 (2011). 47 PETER D.G. THOMAS, JOHN WILKES: A FRIEND TO LIBERTY 32 (1996) (citation omitted). 48 Thomas K. Clancy, The Framers Intent: John Adams, His Era, and the Fourth Amendment, 86 IND. L.J. 979, 1027-29 (2011). 49 For a discussion of the origin and meaning of the word secure, see THOMAS K. CLANCY, THE FOURTH AMENDMENT: ITS HISTORY AND INTERPRETATION 3.1. (2008); Thomas K. Clancy, What Does the Fourth Amendment Protect: Property; Privacy; or Security?, 33 WAKE FOREST L. REV. 307 (1998). 50 E.g., United States v. Jones, 132 S. Ct. 945 (2012). 51 E.g., CUDDIHY, supra note 5, at 185-88 (recounting numerous iterations of that principle); Davies, supra note 20, at 601-03 (same). The Supreme Court has been quite insistent in affording special protection for the home. See, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004) (collecting cases and emphasizing the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion as being at the very core of the Fourth Amendment protections). That special protection has carried forward the framing era consensus. E.g., Weeks v. United States, 232 U.S. 383, 390 (1914) (Resistance to these practices had established the principle which was enacted into the fundamental law in the 4th Amendment, that a mans ho use was his
45 46
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Indeed, the physical entry into the home has been described as the chief evil against which the wording of the Fourth Amendment is directed.52 A persons private papers were seen as almost sacred.53 The Pennsylvania constitution, followed by Adams in Article 14 and only slightly modified in the Fourth Amendment, gave a list of four protected objects: persons, houses, papers, and effects.54 Variations of this list appeared to be common in that era, stemming from Blackstones Commentaries, where he stated that the rights of Englishmen are primarily the free enjoyment of personal security, of personal liberty, and of private property.55 Similarly, Justice Story, in his famous commentaries, observed that the Fourth Amendment seems indispensible to the full enjoyment of the rights of personal security, personal liberty, and private property.56
castle, and not to be invaded by any general authority to search and seize his goods and papers.); Osmond K. Fraenkel, Concerning Searches and Seizures, 34 HARV. L. REV. 361, 365 (1921) (opining that it was apparent that the Fourth Amendment embodied the principle in English liberty that found expression in the maxim every mans home is his castle). 52 E.g., United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972). 53 See CLANCY, supra note 49, 3.1.2.2. 54 PA. CONST. of 1776, Declaration of the Rights of the Inhabitants of the Commonwealth, or State of Pennsylvania 10, reprinted in SOURCES OF OUR LIBERTIES 330 (Richard L. Perry & John C. Cooper eds., 1960), which states: That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmation first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search in suspected places, or to seize any person or persons, his or their property, are contrary to that right, and ought not to be granted. Id.
55 1 WILLIAM BLACKSTONE, COMMENTARIES *140; see also id. at *125 (stating that the three rights are: the right of personal security, the right of personal liberty, and the right of private property). For representative references to Blackstones list, see James Otis, A Vindication of the British Colonies (1765), reprinted in 1 PAMPHLETS OF THE AMERICAN REVOLUTION 558 (Bernard Bailyn, ed. 1965) (The absolute liberties of Englishmen, as frequently declared in Parliament, are principally three: the right of personal security, personal liberty, and private property.); Article in the New York Journal (Jan. 23, 1788), reprinted in 20 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 643 (John P. Kaminski & Gaspare J. Saladino, eds. 2004). 56 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1895, at 748 (1833).
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It is notable that the modern Supreme Court has often construed the Fourth Amendment as protecting three interests: two kinds of expectations in property, one involving searches and the other involving seizures; a search occurs when a reasonable expectation of privacy is infringed; and a seizure occurs when there was some meaningful interference with an individuals possessory interest; the third interest protected is a persons liberty interest in proceeding with his itinerary unimpeded by the government.57 Despite the Supreme Courts mid-twentieth century attempt to substitute privacy for security as defining the persons protected interestand the subsequent erosion of the appreciation for the Fourth Amendment rights of individualsthe Court has sometimes forcefully returned to the origins of the Fourth Amendment and its concept of security.58 Indeed, on occasion, the word security seemed to be studiously applied. For example, in Terry v. Ohio,59 which involved the stop and frisk of a person, the Court acknowledged that it had recently held that the Amendment protected a persons right to privacy. However, the Court instead emphasized the words chosen by the Framers, asserting that the inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.60 Indeed, the Court said: No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.61 The Court asserted that the issue in Terry was whether the persons right to personal security was violated by the on-the-street encounter.62 In the
Soldal v. Cook County, 506 U.S. 56, 63 (1992). E.g., United States v. Jones, 132 S. Ct. 945 (2012). Justice Brennan, a principal force in developing privacy as a centralizing role in Fourth Amendment analysis, noted later that, in addition to privacy in information, the Amendment protects, in its own sometimes-forgotten words, [t]he right of the people to be secure in their persons, houses, papers, and effects. Illinois v. Andreas, 463 U.S. 765, 775 (1983) (Brennan., J., dissenting). See generally Thomas K. Clancy, What Does the Fourth Amendment Protect: Property; Privacy; or Security?, 33 WAKE FOREST L. REV. 307, 347-50 (1998). 59 392 U.S. 1 (1968). 60 Id. at 8-9. 61 Id. at 9 (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). 62 Id.
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balance of the opinion, the Court focused on the word security as defining the persons protected interest. In Kyllo v. United States,63 the Court took a significantly different approach toward defining the interest protected by the Fourth Amendment from the framework that has prevailed since Katz v. United States.64 The Kyllo Court was presented with the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constituted a search within the meaning of the Fourth Amendment.65 The Court held that it did.66 To reach that conclusion, Kyllo had to determine if the use of that technology invaded an interest protected by the Amendment. The Kyllo majority opinion was authored by Justice Scalia, and his disdain for the expectations test and his affinity for anchoring Fourth Amendment analysis on the common law as it existed in 1791 was clearly evident. Indeed, in reaching the result in Kyllo, the Court did so without reliance on that test. The Court characterized Katz as involving eavesdropping by means of an electronic listening device placed on the outside of a telephone bootha location not within the catalog (persons, houses, papers, and effects) that the Fourth Amendment protects against unreasonable searches.67 The Court observed that the Katz test . . . has often been criticized as circular, and hence subjective and unpredictable.68 Kyllo acknowledged that the degree of privacy secured to citizens by the Fourth Amendment has been affected by the
63 533 U.S. 27 (2001). For commentary on Kyllo, see generally Symposium, The Effect of Technological Change on Fourth Amendment Rights and Analysis , 72 MISS. L.J. 1 (2002) (featuring articles by Professors A. Morgan Cloud, Tracey Maclin, David Sklansky, Christopher Slobogin, James Tomkovicz, Kathryn Urbonya, Thomas K. Clancy). 64 389 U.S. 347 (1987). 65 Kyllo, 533 U.S. at 31-32. 66 Id. at 34-35. 67 The Court is arguably wrong on this point. Katz was protected because he was within the catalog: he was a person and that o bject on the list includes both physical (the body) and non-tangible (the voice) interests. The government may pry, that is, search, by use of any of the senses. When a person takes steps to exclude the government from prying into any of those interests, such as closing a door of a telephone booth to engage in a conversation, he has a protected interest. 68 Kyllo, 553 U.S. at 34.
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advance of technology, listing as an example the technology enabling human flight[, which] has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private.69 The Court noted that Kyllo involved more than naked-eye surveillance of a home and asserted that it had previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much.70 Rather than rely on Katz, the Court stressed the traditional importance of the home: At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.71 While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homesthe prototypical and hence most commonly litigated area of protected privacythere is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a searchat least where (as here) the technology in question is not in general public use.72 This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. The Courts language is remarkable for its reliance on themes developed by the Court when property analysis was the applicable test: the common law; constitutionally protected areas; analogy to
69 70 71 72
Id. at 33-34. Id. at 33. Id. at 31 (citing Silverman v. United States, 365 U.S. 505 (1961)). Id.
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physical intrusions; and reliance on what was protected at the time of the framing. Yet, the Court retained the essential lesson of Katz, which is not that the Fourth Amendment protects privacy, but that the interests protected by the Amendment include tangible and intangible interests and that the mode of invasion into those interests is not limited to physical intrusions. The Court used language supporting a security model for Fourth Amendment rights, grounded in language consistent with the meaning of the word secure that has prevailed since the time the Fourth Amendment was framed: the home is protected, the majority asserted, because the entire area is held safe from prying government eyes.73 Indeed, the scope of protection afforded by the Kyllo Court to the home is remarkable for its breadth and the Courts willingness to draw a firm and bright-line rule at the entrance of the house. As to what is learned, the Court asserted: The Fourth Amendments protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman [v. United States, 365 U.S. 505 (1961)], for example, we made clear that any physical invasion of the structure of the home, by even a fraction of an inch, was too much, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details.74 Thus, in Kyllo, how warmor even how relatively warm Kyllo was heating his residence was information about the interior of the home and was therefore protected.75 After eliminating the gloss of the Supreme Courts property and privacy analyses, the underlying common themethat the Amendment protects the right to excludehas appeared often in the Courts opinions. Although the trespass theory of Olmstead76 and its progeny protected only physical objects from physical
73 74 75 76
Id. at 37. Id. Id. at 38. Olmstead v. United States, 277 U.S. 438 (1928).
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invasions, the underlying rationale for that line of cases was the ability to exclude unreasonable intrusions. As the Court explained: A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a mans castle.77 The post-Katz era Court confused the reasons for exercising the protected right with the right itself. A purpose of exercising ones Fourth Amendment rights might be the desire for privacy, but the individuals motivation is not the right protected.78 Shortly after the Katz decision, one commentator wrote that the Fourth Amendments operative function is exclusionary: it works negatively to keep out the unwelcome agencies of government. It logically follows, however, that where something is to be kept out, that from which it is barred deserves recognition in a positive sense. It is for this reason that the fourth amendment should be looked upon as safeguarding an affirmative right of privacy.79
Silverman v. United States, 365 U.S. 505, 511 n.4 (1961). Indeed, one concept of privacy is simply the power to control access by others to a private object (to a private place, to information, or to an activity). [It] is the ability to maintain the state of being private or to relax it as, and to the degree that, and to whom one chooses. STANLEY I. BENN, A THEORY OF FREEDOM 266 (1988), quoted in Laurence A. Benner, Diminishing Expectations of Privacy in the Rehnquist Court , 22 J. MARSHALL L. REV. 825, 855 (1989); see also Note, Protecting Privacy Under the Fourth Amendment, 91 YALE L.J. 313, 329 (1981) (The essence of privacy is twofold: the ability to keep personal information unknown to others and to keep ones self separate from interaction with others.). Is this not to say that people have the power to exclude? If privacy is only the power to exclude, then there is no reason to refer to the concept, which serves only to confuse what the individuals right is, particularly given the many uses that privacy has. Cf. Daniel B. Yeager, Search, Seizure and the Positive Law: Expectations of Privacy Outside the Fourth Amendment , 84 J. CRIM. L. & CRIMINOLOGY 249, 284 (1993) (Whatever privacy means, it surely must include the right to exclude others.). 79 Note, From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection, 43 N.Y.U. L. REV. 968, 968 (1968).
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Within this syllogism is the flaw that has plagued courts and commentators. The Fourth Amendment does act negatively, to exclude. But that is also the essence of the right to be secure. To look beyond the right to exclude and seek positive attributes to the right to be secure, whether those attributes be called privacy or something else, serves to limitand ultimately defeatthat right.80 Indeed, those attributes are mere motivations for exercising the right; they do not define it. The exclusionary function of the Amendment is so bound up with the right to be secure as to be equivalent to it: There is no security if one cannot exclude the government from intruding. The right to be secure permits one to do as one wishes for whatever reasons that motivate the person.81 The Fourth Amendment is an instrumenta gatekeeper that keeps out the government. The gatekeeper does not ask why one desires to exclude the government; it simply follows orders.82 As a
80 Cf. Laurence A. Benner, Diminishing Expectations of Privacy in the Rehnquist Court, 22 J. MARSHALL L. REV. 825, 827 (1989) (An examination of [colonial and English] history and the literal language of the Amendment as well reveals that the Framers did not attempt to define the contours of a comprehensive right to privacy. Rather, they attempted to construct a restraint upon governmental action.); Richard H. Fallon, Jr., Individual Rights and the Powers of Government , 27 GA. L. REV. 343, 364-65 (1993) (The foundation of some constitutional rights is to prevent abuse of power by government and that, rather than those rights forming an independent limit on government power . . . anxiety about abuse of power generates rights.); Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 740 (1989) (contrasting the right of privacy, which attaches to the rightholders own actions such as marriage and abortion, with expectations of privacy under the Fourth Amendment and the right of privacy protected by tort law, with the latter concept used to govern the conduct of other individuals who intrude in various ways upon ones life and to limit the ability of others to gain, disseminate, or use information about oneself). 81 Cf. Bowers v. Hardwick, 478 U.S. 186, 206-08 (1986) (Blackmun, J., dissenting) (purpose of the Fourth Amendment protection of the home is more than merely a means of protecting specific activities that often take place there); Warden v. Hayden, 387 U.S. 294, 301 (1967) (On its face, the [Fourth Amendment] assures the right of the people to be secure in their persons, houses, papers, and effe cts . . . without regard to the use to which any of these things are applied.); Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. CHI. L. REV. 47, 85 (1974) (It would misconceive the great purpose of the amendment to see it primarily as the servant of other social goods, however large and generally valuable.). 82 Cf. Charles A. Reich, The New Property, 73 YALE L.J. 733, 771 (1964) (Property draws a circle around the activities of each private individual or organization. Within that circle, the owner has a greater degree of freedom than without. Outside, he must justify or explain his actions, and show his authority. Within, he is master, and the state must explain and justify any interference.).
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gatekeeper, the Amendment permits other rights to flourish. However, the purpose of exercising ones Fourth Amendment rights neither adds to nor detracts from the scope of the protection afforded by the Amendment. The ability to exclude is so essential to the exercise of the right to be secure that it is proper to say that it is equivalent to the rightthe right to be secure is the right to exclude. Without the ability to exclude, a person has no security. With the ability to exclude, a person has all that the Fourth Amendment promises: no unjustified intrusions by the government. In other words, the Fourth Amendment gives the right to say, No, to the governments attempts to search and seize. Privacy, human dignity, a dislike for the government, and other states of mind may motivate exercise of the right to exclude, but they are not synonymous with that right or with aspects of the right. Defining security as having the right to exclude has historical roots and meaning; Otis and the Framers lived in a time that equated security with the ability to exclude. It provides an easily identified and applied rule designed to protect an individuals right to be safe as to his or her person, house, papers, and effects. The concept of security cannot be divorced from the object protected. The meaning of security varies somewhat in relation to the protected interest specified by the Amendment: persons, houses, papers, or effects.83 However, the core concept remains the right to exclude. Privacy analysis purported to abandon reliance on the principle of constitutionally protected areas, with Katz asserting that the Amendment protects people, not places.84 Such a claim simply ignores the language and structure of the Amendment: People have the right to be secure only as to their
83 Cf. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 672-73 (1995) (OConnor, J., dissenting) (collection of urine to test for drugs is search of a person and thus one of the four categories of searches the Fourth Amendment lists by name); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (Although the Fourth Amendment protects people, not places, [g]enerally . . . the answer to that question requires reference to a place.); Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 580 (1996) (noting that Boyd defined the realm of personal autonomy protected by the Amendment largely in terms of property rights, and arguing that that approach is consistent with the text of the Amendment, which specifically links some aspects of liberty and privacy to property, and a persons relationship to it). 84 Katz, 389 U.S. at 351.
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persons, houses, papers, and effects. Kyllo, and more recently Jones, by speaking of constitutionally protected areas,85 signaled a repudiation of Katzs framework. Security, liberty, privacy, and property rights stem from a common origin: the Framers intent to give persons the right to exclude the government from interfering with an individuals person, house, papers, and effects. As Otis recognized, the right to be secure must have a normative basis; otherwise, any definition will be subject to deprecation by interpretation favoring governmental needs. Along with a normative view, there must be an interpretation of the Amendment favorable to the promotion of individual rights.86 Otherwise, a majority of the Court may use any definition of the individuals protected interest, be it grounded in property, privacy, or security, in a way inimical to individual rights. The Fourth Amendment, at its most fundamental level, is designed to protect people from the government. It is no great leap to say that it should therefore be interpreted in a manner favorable to the enhancement of individual liberty. The inquiry in each case must examine the essence of what the Amendment seeks to protect: the right to be securethat is, the ability to exclude others from prying.
B. Governmental Interests
Jeremiah Gridley defended the general writs of assistance, inter alia, as necessary to enforce the customs laws:87 [T]he necessity of the Case and the benefit of the Revenue . . . . [T]he Revenue [was] the sole support of Fleets & Armies, abroad, & Ministers at home[,] without which the Nation could neither be preserved from the Invasions of her foes, nor the Tumults of her own Subjects.
Kyllo, 533 U.S. at 49. See, e.g., Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 353 (1974) (The Bill of Rights in general and the fourth amendment in particular are profoundly anti-government documents.); Cloud, supra note 83, at 626-27 (arguing that the values underlying the Amendment, to protect individual rights, must be reflected in its application to modern conditions, where scientific invention has made it possible for government agents to violate privacy rights without employing physical power). 87 See generally QUINCY, supra note 13, at 476-82.
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Is not this I say infinitely more important, than the imprisonment of Thieves, or even Murderers? yet in these Cases tis agreed Houses may be broke open. . . . So it is established, and the necessity of having public taxes effectually [sic] and speedily collected is of infinitely greater moment to the whole, than the Liberty of any Individual.88 Gridley conceded that the common privileges of Englishmen were taken away by the writs procedure but asserted that those benefits were also taken away in criminal cases.89 No record indicates whether Otis addressed Gridleys admittedly strong governmental interests. Instead, Otis outlined circumstances when the individuals interest could be legally invaded: a persons security in his home is forfeited only in cases of the most urgent necessity and importance.90 Adamss notes characterized the need that Otis urged as: For flagrant Crimes, and in Cases of great public Necessity, a persons house may be invaded.91 From Gridley to the present, claims of necessity have often been invoked in justifying searches.92 However, what Gridley failed to do, and what Otis did do (as discussed in the next section), is distinguish between a strong governmental need and how to effectuate that interest. A pamphleteer in England, a short time after the Writs case, commenting on the use of general warrants to pursue persons suspected of seditious libel captured the essence of the argument: No necessities of state can even be a reason for quitting the road of law in the pursuit of the libeller [sic].93 In other words, merely because the government has a
SMITH, supra note 4, at 281. Id. 90 QUINCY, supra note 13, at 490. 91 Id. at 471. 92 See, e.g., Entick v. Carrington, (1765) 19 Howells St. Tr. 1029 (K.B.) 1063-64 (Attorneys for Lord Halifax argued that the power of the executive to issue search warrants for papers in seditious libel cases was essential to the government.). 93 FATHER OF CANDOR, LETTER CONCERNING LIBELS, WARRANTS, THE SEIZURE OF PAPERS, AND SURETIES FOR THE PEACE OR BEHAVIOR 42 (5th ed. 1765). Referring to times of rebellion as illustrating an argument for true necessity for the use of general warrants, the writer observed that, in such situations, men may wink at all irregularities. Id. at 49. He added: And yet, bad men . . . will be apt to lay stress upon such acts of necessity, as precedents for their doing the like in ordinary cases, and to
88 89
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strong interest does not mean that it can use any or all means to effectuate that interest. That confusion of ends and means has surfaced repeatedly in contemporary Fourth Amendment analysis.94 Many cases fail to distinguish between the strength of the government interest95 involved and the methods to search and seize needed to effectuate that interest.
C. Proper Procedure to Authorize and Conduct a Search

There is an intimate connection between a persons right to be secure and the procedures utilized by the government to investigate. Having acknowledged that the government could, under proper circumstances, invade a persons right to be secure, Otis offered criteria by which to judge the propriety of that invasion. The writs procedure, Otis maintained, made each person subject to petty tyrants.96 He emphasized the uncontrolled discretion of the customs officials: [C]an a community be safe
gratify personal pique, and therefore such excesses of power are dangerous in example, and should never be excused. Id. He concluded that, even in cases of high treason where the persons could not be named, the use of general warrants would be applied to his pardon, and not his justification. Id. at 50. 94 See, e.g., Indianapolis v. Edmond, 531 U.S. 32, 42 (2000) (rejecting as sufficient to depart from individualized suspicion the severe and intractable nature of the drug problem); Torres v. Puerto Rico, 442 U.S. 465, 472-74 (1979) (rejecting suspicionless searches of luggage of persons coming to island from United States, despite recognition that the commonwealth had serious problems with influx of weapons and narcotics and stating that we have not dispensed with the fundamental Fourth Amendment prohibition against unreasonable searches and seizures simply because of a generalized urgency of law enforcement); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 317 (1984) (The general searches which the framers sought to outlaw when they enacted the fourth amendment may well have been cost-justified, and were defended on precisely this basis.). See generally CLANCY, THE FOURTH AMENDMENT, supra note 49, 11.3.4.4.2.4.3. (discussing role of necessity in measuring reasonableness in Supreme Court opinions); id. 11.5.3.2. (discussing the role that necessity should have). 95 See, e.g., Edmond, 531 U.S. at 44-47 (2000) (utilizing a programmatic purpose analysis to distinguish between permissible and impermissible suspicionless intrusions); Michigan Dept of State Police v. Sitz, 496 U.S. 444 (1990) (stating that it was up to politically accountable officials to choose among reasonable alternative law enforcement techniques); Skinner v. Railway Labor Executives Assn, 489 U.S. 602, 639 (1989) (permitting substance abuse testing of all crew members of trains involved in an accident or in a rule violation because serious train accident scenes frequently are chaotic, making it impractical for investigators to determine which crew members contributed to the accident). 96 QUINCY, supra note 13, at 490.
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with an uncontrould [sic] power lodgd in the hands of such officers, some of whom have given abundant proofs of the danger there is in trusting them with ANY?97 The writs of assistance were seen by Otis as deficient because, inter alia, they existed for an unlimited length of time, they were not returnable, no oath was required for one to issue, and no grounds were needed to justify the request.98 In addition, Otis criticized the manner in which the customs searches occurred: Houses were to be broken open, and if a piece of Dutch linen could be found, from cellar to the cock-loft, it was to be seized and become the prey of governors, informers, and majesty.99 The writs, Otis asserted, [I]s a power, that places the liberty of every man in the hands of every petty officer.100 He detailed: In the first place, the writ is universal, being directed to all and singular Justices, Sheriffs, Constables, and all other officers and subjects; so, that, in short, it is directed to every subject in the Kings dominions. Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him. In the third place, a person with this writ, in the daytime, may enter all houses, shops, &c. at will, and command all to assist him. Fourthly, by this writ not only deputies, &c., but even their menial servants, are allowed to lord it over us. Now one of the most essential branches of English liberty is the freedom of ones house. A mans house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses, when they
Id. at 494. Petition of Lechmere, Editorial Note, in 2 LEGAL PAPERS OF JOHN ADAMS, supra note 36, at 114. 99 Id. at 319. This quote can be found at JUDSON STUART LANDON, THE CONSTITUTIONAL HISTORY AND GOVERNMENT OF THE UNITED STATES 240 (1889). 100 2 THE WORKS OF JOHN ADAMS, supra note 12, app. A at 524-25 (1850).
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please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient.101 Otis cited one wanton exercise102 of the power of the writs, Walley v. Ware, a case where a magistrate had questioned Ware about a charge of breach of the Sabbath day acts or for profane swearing. In response, Ware, who was a customs official, demanded to search the magistrates home for uncustomed goods.103 Ware then went on to search his house from the garret to the cellar.104 Otis observed that Ware did not pretend to have any suspicion of contraband goods as a reason for his conduct.105 Otis offered an alternative procedurewarrants for stolen goods,106 which he called special107 warrants. He characterized those warrants as directed to special officers, and to search certain houses, &c. specially set forth in the writ, issued based upon oath of the person who asked for the warrant that he suspects such goods to be concealed in those very places he desires to search.108 He argued that the need for the invasion always ought to be determind by adequate and proper judges.109 Otis detailed the criteria for the warrant to issue: [S]pecial writs may be granted on oath and probable suspicion. . . . [A]n officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places.110
Id. Id. 103 QUINCY, supra note 13, at 476 n.29, 490. 104 2 THE WORKS OF JOHN ADAMS, supra note 12, app. A at 524-25 (1850). 105 QUINCY, supra note 13, at 490. 106 2 THE WORKS OF JOHN ADAMS, supra note 12, app. A at 524-25 (1850). 107 Id. 108 Id. 109 QUINCY, supra note 13, at 490. 110 2 THE WORKS OF JOHN ADAMS, supra note 12, app. A at 524-25 (1850). Warrants to recover stolen goods were originally issued as general warrants, but that practice was giving way to requiring special warrants by the middle of the eighteenth century.
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Shortly after the Writs case, repeatedly expressed concerns about general warrant searches and seizures and the need to limit an officers discretion arose in England.111 The cases were extensively reported in the popular press in the colonies, including in Boston, and they were exploited to increase bad feelings against British rule and molded colonial sentiment to view general warrants as oppressive.112 One of the many disputes among contemporary legal scholars revolves around the meaning and significance of probable cause to the Framers.113 Yet, the concept of probable cause as a
See SMITH, supra note 4, at 336-39; see also Grumon v. Raymond, 1 Conn. 40, 43-46 (1814) (recognizing that a search warrant for stolen goods must limit search to particular places where reasonable to suspect goods are and to such persons reasonably suspected); Frisbie v. Butler, 1 Kirby 213, 215 (Conn. 1787) (same). The validity of Otiss claim as a matter of established English common law at that time is debatable. CUDDIHY, supra note 5, at 392. Compare HALE, supra note 22, at 150 (asserting that a general warrant to search in all suspected places [for stolen goods] is not good, but only to search in particular places, where the party assigns before the justice of the justice his suspicion and probable cause thereof and maintaining that general warrants were dormant), with MICHAEL DALTON, THE COUNTRY JUSTICE 418 (1746) (Warrant for stolen goods was a general one, permitting diligent Search in all and every such suspected Houses . . . as you and this Complainant shall think convenient .); id. at 419, 423-24 (setting out other general warrant forms to search after a robbery and for rogues). But it appears closer to the truth as to the then existing Massachusetts practice. See CUDDIHY, supra note 5, at 311-12, 340-41, 371-75, 386 n.54, 389 n.68 (discussing evolution of the history of stolen-goods warrants from general to specific and concluding that they were probably specific in Massachusetts by 1761). 111 See Money v. Leach, (1765) 97 Eng. Rep. 1075 (K.B.); Entick v. Carrington, (1765) 19 Howells St. Tr. 1029 (K.B.); Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (K.B.); Huckle v. Money, (1763) 95 Eng. Rep. 768 (K.B.). 112 See CUDDIHY, supra note 5, at 538-40, 847-50. 113 See, e.g., Davies, supra note 20, at 629-40; David A. Sklansky, The Fourth Amendment and the Common Law, 100 COLUM. L. REV. 1739 (2000). My reading of history leads me to the conclusion that probable cause was the accepted standard. See, e.g., United States v. Watson, 423 U.S. 411, 418-19 (1976) (discussing ancient common-law rule permitting arrests without warrant for misdemeanors and felonies committed in an officers presence and for felonies not in an officers presence for which there were reasonable grounds to arrest); HALE, supra note 22, at 91-92 (when the constable ascertained that a felony had been committed and he had probable grounds that a specific person was the perpetrator, the constable could arrest the suspect without a warrant); id. at 103 (observing that an arrest based on hue and cry permissible when probable cause to arrest present); accord Payton v. New York, 445 U.S. 573, 605 (1980) (White, J., dissenting); JAMES F. STEPHEN, 1 A HISTORY OF THE CRIMINAL LAW OF ENGLAND 191 (1883) (referring to the level of suspicion as reasonable grounds that the person has committed a felony); see also Samuel v. Payne, (1780) 99 Eng. Rep. 230 (K.B.) (recognizing as defense to false imprisonment
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justification for a search or seizure was well known in the framing era: Thatcher, Otis, and Adams advocated such a standard. As noted, Otis contrasted wanton exercises of power under the writs of assistance where [b]are suspicion without oath [was] sufficient. Otis, in his famous oration, repeatedly argued in favor of the criteria to issue warrants for stolen goods, which required a showing of good Grounds of suspicion,114 probable suspicion,115 or probable ground.116 Contemporary variations of that wording were frequent.117 James Madisons sole innovation in drafting the Fourth Amendment was to explicitly adopt probable cause as a required basis for a warrant to issue.118 He did not write those words in a vacuum. That standard was repeatedly referenced as a needed criterion. Merely because the meaning of probable cause was not fixed does not undermine its importance. Indeed, its meaning remains unfixed to this day.119
claim, stemming from constables arrest of plaintiff, fact that arrest was based on allegations that plaintiff had stolen goods). Others claim that, although probable cause was a requirement of legal doctrine, judges in the Framers era did not widely engage in aggressive sentryship of probable cause. Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 J. CONST. L. 1, 4-5 (2007). Such claims, however, do not undermine the existence of the standard. 114 Petition of Lechmere, Adams Minutes of the Argument, in 2 LEGAL PAPERS OF JOHN ADAMS, supra note 36, at 125-26. 115 2 THE WORKS OF JOHN ADAMS, supra note 12, app. A at 525 (1850). 116 Id. 117 E.g., Money v. Leach, (1765) 97 Eng. Rep. 1075 (K.B.) (attorneys for the defendant argued that the search was justified because the authorities had probable cause at the time of the search, despite the fact that the authorities were acting under a general warrant); 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 161 (1810) (asserting that an arrest must be based on some probable ground); HALE, supra note 22, at 91-92 (When the constable ascertained that a felony had been committed and he had probable grounds that a specific person was the per petrator, the constable could arrest the suspect without a warrant.); id. at 103 (observing that an arrest based on hue and cry permissible when probable cause to arrest present); see also CUDDIHY, supra note 5, at 413-14, 423-27, 642-45, 754-58 (tracing numerous instances of the use of probable cause or individualized suspicion as a needed requirement to justify a search or seizure). 118 Thomas K. Clancy, The Framers Intent: John Adams, His Era, and the Fourth Amendment, 86 IND. L.J. 979, 1047 (2011). 119 See CLANCY, supra note 49, 11.3.2.1.1. (discussing Supreme Courts treatment of the meaning of probable cause); Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74 MISS. L.J. 279, 284 (2004) (From its origins until the enactment of the Fourth Amendment, probable cause seems to have remained in a state of flux.).
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The Courts initial cases were notable for their premise that a warrant complying with the specifications of the Warrant Clause was required for all searches.120 The Courts only acknowledged exception in those early cases was for searches incident to arrest, which had a strong historical pedigree.121 To this day, the Court sometimes states that all searches and seizures are per se unreasonable, subject to enumerated exceptions, in the absence of a warrant.122 At other times, the Court has rejected a categorical warrant requirement and has looked to the totality of the circumstances to measure the validity of the governments activities.123 In more recent times, the competition between those two views has continued but has become more complex. The Court has developed numerous models and frameworks for measuring reasonableness, beyond the warrant preference and general reasonableness models, all of which uneasily coexist in current Supreme Court case law.124 Some cases engage in a contemporary balancing of individual and governmental interests,125 adopt the
120 See Taylor v. United States, 286 U.S. 1, 6 (1932) (Failure to obtain warrant before searching garage, when there was abundant opportunity to do so, necessitated suppression of evidence.); Agnello v. United States, 269 U.S. 20, 32 (1925) (While the question has never been directly decided by this court, it has always been assumed that ones house cannot lawfully be searched without a search warrant.); Amos v. United States, 255 U.S. 313 (1921) (cannot search house without warrant); Weeks v. United States, 232 U.S. 383, 393 (1914) (The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution.); In re Jackson, 96 U.S. 727 (1878) (asserting that warrant based on probable cause necessary to search letter in mail). 121 See CLANCY, supra note 49, 8.1.1. 122 See, e.g., Arizona v. Gant, 556 U.S. 332, 338 (2009); California v. Acevedo, 500 U.S. 565, 580 (1991); Mincey v. Arizona, 437 U.S. 385, 390 (1978); Katz v. United States, 389 U.S. 347, 357 (1967). 123 E.g., United States v. Banks, 540 U.S. 31 (2003) (rejecting lower courts categorical approach in favor of totality of circumstances principle (this quote does not appear in the case) to measure reasonableness); United States v. Knights, 534 U.S. 112, 118 (2001) ([G]eneral approach to measuring reasonableness examines totality of circumstances.); United States v. Rabinowitz, 339 U.S. 56, 65-66 (1950) (The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances the total atmosphere of the case.). 124 See generally CLANCY, supra note 49, at Ch. 11 (discussing the various models the Court uses to measure reasonableness); Thomas K. Clancy, The Fourth Amendments Concept of Reasonableness, 2004 UTAH L. REV. 977 (2004) (same). 125 E.g., Samson v. California, 547 U.S. 843 (2006).
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common law as of 1791 as dispositive,126 or mandate some level of individualized suspicion.127 Thus, as I have said elsewhere: There are at least five principal models that the Court currently chooses from to measure reasonableness: the warrant preference model; the individualized suspicion model; the totality of the circumstances test; the balancing test; and a hybrid model giving dispositive weight to the common law. Because the Court has done little to establish a meaningful hierarchy among the models, the Court in any situation may choose whichever model it sees fit to apply. Thus, cases decided within weeks of each other have had fundamentally differentand irreconcilable approaches to measuring the permissibility of an intrusion.128 The warrant and individualized suspicion modelsboth clearly evident in Otiss argumentlimit not only the circumstances under which the government may initiate actions but also the scope and details of the search or seizure. When individualized suspicion or a warrant is absent, the Court at one time examined the procedures utilized in selecting the target of the search or seizure, and in executing the search or seizure as one of the elements of the balancing test to determine whether the intrusion is permissible.129 Although the Court originally demanded tight reigns on discretion by officials executing suspicionless searches or seizures, executing officials in other cases have been permitted wide discretion.130 Viewing the cases as a whole, the significance of this factorand the criteria by which to measure the propriety of intrusionshas disappeared in more recent case law. In my view, consistent with Otiss arguments, it should be shown as a precondition for abandoning a preferred model of reasonablenesssuch as a warrant or a showing of individualized suspicionthat utilizing such a model would not protect a vital
126 127 128 129 130
E.g., Wyoming v. Houghton, 526 U.S. 295 (1999). E.g., Indianapolis v. Edmond, 531 U.S. 32 (2000). CLANCY, supra note 49, at 468. Id. 11.3.4.4. E.g., Samson, 547 U.S. 843.
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governmental interest.131 This conception of necessity is reflected in the Courts initial departures from the individualized suspicion model; a similarly strong conception of exigency traditionally permeated the question whether the police could search without a warrant.132 However, any requirement for any showing of need to use the means chosen as a precondition for a suspicionless search or seizure has been worn away by more recent decisions.133
131 CLANCY, supra note 49, 11.5; see also Michigan Dept of State Police v. Sitz, 496 U.S. 444, 458-59 (1990) (Brennan, J., dissenting) (Without proof that the police cannot develop individualized suspicion that a person is driving while impaired by alcohol, I believe the constitutional balance must be struck in favor of protecting the public against even the minimally intrusive seizures involved in this case.); OConnor v. Ortega, 480 U.S. 709, 744-46 (1987) (Blackmun, J., dissenting) (Before warrant and probable cause standards are dispensed with, it must be established that no alternative is available.); United States v. Martinez-Fuerte, 428 U.S. 543, 575-76 (1976) (Brennan, J., dissenting) (There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied.). Cf. Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion) (The concept that constitutional provisions against arbitrary governmental actions are inoperative when they become inconvenient or when expediency dictates otherwise . . . if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.); United States v. Di Re, 332 U.S. 581, 595 (1948) ([T]he forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.). 132 See, e.g., Warden v. Hayden, 387 U.S. 294, 299 (1967) (No warrant required to enter house when police in hot pursuit of fleeing felon, with the Court noting: Speed here was essential.). 133 E.g., Vernonia School District v. Acton, 515 U.S. 646, 663-64 (1995) (In discussing the efficacy of this means of addressing drug use by student athletes, the Court rejected the least intrusive means analysis and a suspicion-based testing scheme.); Sitz, 496 U.S. 444; National Treasury Employees Union v. Von Raab, 489 U.S. 656, 674-75 (1989) (No showing that the suspicionless urinalysis testing of certain customs service employees was needed to effectuate the governmental interest; the Court maintained that, where the possible harm against which the Government seeks to guard is substantial, the government interest in preventing its occurrence alone furnishes ample justification for reasonable searches designed to further that goal.). The Von Raab majority illustrated its position by reference to the practice of searching all passengers seeking to board commercial airliners, as well as the search of their carry-on luggage, which was in response to an observable national and international hijacking crisis. Von Raab, 489 U.S. at 676. The Von Raab majority believed that [w]hen the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the procedures utilized in executing the search were also reasonable. Id. It posited: It is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from
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Nothing remains of a requirement of a showing of ends and means. Indeed, many contemporary cases involve the simple balancing of the governments interests against the individuals, with not even a nod toward an additional requirement of a showing of a relationship with ends and means.134
IV.
The use of the writs of assistance for customs searches and seizures caused profound resentment in the colonies,135 and their use is considered to be the first in the chain of events which led directly and irresistibly to revolution and independence.136 After the Superior Court ruled in favor of the proponents of the writs in 1761, a series of steps were taken by opponents. The Massachusetts House of Representatives passed a bill requiring that writs of assistance be issued only when the customs officer possessed credible information, from a specified informant, that one of the acts of trade had been violated by a specified person at a specific place.137 The bill was vetoed by the governor, despite his recognition that the bill was very popular and that the veto would cause a clamor.138 Public reaction in Massachusetts and in other colonies against the writs was widespread and included rescuing
spreading to a particular context. Id. Thus, the validity of the searches was not impugned for a particular airport or airline, even though there was no demonstrated danger at the airport or for the airline. Nor did the validity of the screening program depend upon whether significant numbers of offenders were discovered. The Court opined that, when deterrence was the goal, a low incidence of the conduct sought to be prevented was a hallmark of success. Id. at 677. 134 E.g., Samson, 547 U.S. at 846 (upholding suspicionless search of parolee by balancing competing governmental and individual interests and rejecting argument that the California law that permitted such searches permitted unbridled discretion by simply noting that the statute had been construed to prevent arbitrary, capricious or harassing searches); United States v. Knights, 534 U.S. 112 (2001) (simple balancing of probationers and governments interests). 135 LANDYNSKI, supra note 3, at 31; see also Harris v. United States, 331 U.S. 145, 159 (1947) (Frankfurter, J., dissenting) (The abuses surrounding searches and seizures more than any one single factor gave rise to American independence.); Richard M. Leagre, The Fourth Amendment and the Law of Arrest , 54 J. CRIM. L. & CRIMINOLOGY, 393, 397 (1963) (Based on the history of abuses, the chief concern in the colonists minds was probably with the issuance of general warrants.). 136 LASSON, supra note 26, at 51 (citation omitted). 137 SMITH, supra note 4, at 567-68; see also QUINCY, supra note 13, at 495-96 (providing text of the bill). 138 SMITH, supra note 4, at 425-28.
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seized ships,139 issuing town meeting promulgations, pamphleteering, publishing accounts of Otiss arguments in the Writs of Assistance Case,140 and creating other writings and propaganda decrying the oppressive nature of the writs.141 In 1767, Parliament passed the Townshend Act to clarify existing statutory authority to issue the writs in the colonies.142 That Act, which authorized general writs of assistance, was ineffective, with most courts in the American colonies continuing to refuse to issue the writs.143 Some colonial courts instead issued special writs.144 That interpretation of the Act was in direct conflict with its purpose, and two different attorneys general of England issued opinions reminding the American courts that the writs authorized by the legislation were to be general.145 Notably, Massachusetts continued to issue general writs of assistance.146 This is to say that Massachusetts remained the main battleground in the colonies regarding British search and seizure practices,147 although the Townsend Act kept the issue alive in other colonies for most of the period leading up to the Revolution.
139 See, e.g., Sewall v. Hancock, Editorial Note, in 2 LEGAL PAPERS OF JOHN ADAMS, supra note 36, at 179-80. 140 See, e.g., CUDDIHY, supra note 5, at 396, 544-45. 141 See generally QUINCY, supra note 13, at 436-38, 444-49, 458-59, 463, 488-94; SMITH, supra note 4, at 466-501, 562-66. As an example of the contemporary reaction, Chief Justice Thomas Hutchinsons home was burned by arsonists during the Stamp Act riots of 1765. The then-governor of Massachusetts Bay Colony attributed the attack to Hutchinsons role in granting writs of assistance to customs officials. LASSON, supra note 26, at 68; QUINCY, supra note 13, at 416 n.2, 434 n.20; TAYLOR, supra note 3, at 38. 142 SMITH, supra note 4, at 438-60 (The Townshend Act was motivated by the recognition that there was no legal basis to issue writs of assistance in the colonies.). The Acts of Trade created a new American Board of Customs to enforce the acts and authorized the highest court in each colony to issue writs of assistance. Q UINCY, supra note 13, at 449-50. 143 See generally QUINCY, supra note 13, at 500-11; O.M. Dickerson, Writs of Assistance as a Cause of the Revolution, in THE ERA OF THE AMERICAN REVOLUTION 4075 (Richard B. Morris ed., 1939) (summarizing colonial courts reaction to petitions for writs of assistance between 1761 and 1776). 144 QUINCY, supra note 13, at 510-11, 534-35; SMITH, supra note 4, at 2, 460, 469-70. 145 SMITH, supra note 4, at 2-3, 461-62, 520-23. 146 See generally QUINCY, supra note 13, at 401-35. 147 Cf. CUDDIHY, supra note 5, at 327 (Colonial Massachusetts, not Great Britain, formulated most of the ideas that formed the specific warrant clause of the Fourth Amendment.).
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Inspired by Otis, Adams, throughout his life, repeatedly referenced the importance of Otiss arguments.148 Adams later recounted that Otiss oration was so moving that then and there the American Revolution was born.149 Notably, Adams distinguished between the war and the Revolution.150 He saw the the real American Revolution as a radical change in the principles, opinions, sentiments and affections of the people and in the minds and hearts of the people.151 In 1779, John Adams drafted Article 14 of the Massachusetts Declaration of Rights, which became the model for the Fourth Amendment.152
148 See Thomas K. Clancy, The Framers Intent: John Adams, His Era, and the Fourth Amendment, 86 IND. L.J. 979 (2011).
For example, in 1780, Adams marked 1760 as the beginning of the dispute with Great Britain, when orders were sent from the board of trade in England to the custom-house officials in America, to apply to the supreme courts of justice for writs of assistance to enable them to carry into a more rigorous execution of certain acts of parliament called the acts of trade . . . by breaking open houses, ships, or cellars, chests, stores, and magazines, to search for uncustomed goods. In most of the Colonies these writs were refused. In Massachusetts Bay the question, whether the writs were legal and constitutional, was solemnly and repeatedly argued before the supreme court by the most learned counsel in the Province. . . . [T]he arguments advanced upon that occasion by the bar and the bench, opened to the people such a view of the designs of the British government against their liberties and the danger they were in, as made a deep impression upon the public, which never wore out. Letter from John Adams to Mr. Calkoen (Oct. 4, 1780), in 7 THE WORKS OF JOHN ADAMS, supra note 12, at 266-67 (1852). 149 LASSON, supra note 26, at 58-59 (citing Letter from John Adams to William Tudor (Mar. 28, 1817), in 10 THE WORKS OF JOHN ADAMS, supra note 12, at 247-48 (1856); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 286 n.8 (1990) (Brennan, J., dissenting) (citing Adamss assessment of Otiss argument); Payton v. New York, 445 U.S. 573, 583 n.21 (1980) (same). 150 Letter from John Adams to H. Niles (Feb. 13, 1818), in 10 THE WORKS OF JOHN ADAMS, supra note 12, at 282 (1856). 151 Id. at 282-83; see also Letter from John Adams to Thomas Jefferson (Aug. 24, 1815), in 10 THE WORKS OF JOHN ADAMS, supra note 12, at 172 (1856) (The revolution was in the minds of the people, and this was affected from 1760 to 1775 . . . before a drop of blood was shed at Lexington.); letter from John Adams to Dr. Morse (Nov. 29, 1815), in id. at 183-84 (stating that the revolution in the principles, views, opinions, and feelings of the American people began with Otis s argument); letter from John Adams to William Tudor (Mar. 29, 1817), in 10 THE WORKS OF JOHN ADAMS, supra note 12, at 247 (1856) (stating that Otiss argument breathed into this nation the breath of life). 152 Cf. Harris v. United States, 331 U.S. 145, 158 (1947) (Frankfurter, J., dissenting) (Because the Fourth Amendment was based on the Massachusetts model,
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Perhaps, in the end, the choices the Court must make come down to two: Is the Amendment designed to regulate law enforcement practices or is it designed to protect individuals from overreaching governmental intrusions? The first impulse is reflected in California v. Hodari D.,153 where the Court sought to establish the point at which a seizure of a person occurred. The Court did not construe the word literally but chose instead the common law definition of an arrest to measure when a seizure has occurred; that definition requires physical touching or submission. Explaining its reasoning, the Hodari D. majority candidly stated: We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest . . . . Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Justifying its position, the Hodari D. majority added: Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost
[t]his is clear proof that Congress meant to give wide, and not limit ed, scope to [the] protection against police intrusion.). Many of the state governments at the time of the American Revolution adopted legal protections against unreasonable searches and seizures. Those protections, embodied in the constitutions of the various states after declaring their independence, typically addressed only abuses associated with general warrants. The Massachusetts Constitution, drafted by John Adams in 1779 and adopted by the Commonwealth in 1780, offered a much different model. The constitution Adams created was preceded by a Declaration of Rights, including a search and seizure provision that ultimately became Article 14, which provided: Every subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of search, arrest or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws. LASSON, supra note 26, at 82 n.15. The sole change made to Adamss draft was to substitute the word subject for man. 8 PAPERS OF JOHN ADAMS: MARCH 1779 1780, 263 n.24 (Gregg L. Lint, Robert J. Taylor, Richard Alan Ryerson, Celeste Walker & Joanna M. Revelas eds., 1989). 153 499 U.S. 621 (1991).
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invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command Stop! expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures. The result of that decision has been to expand the zone of unregulated police activity, including coercive, deceptive, and intimidating activity directed at individuals.154 The second view is illustrated by Boyd v. United States.155 In discussing why it construed the concept of a search and seizure broadly, that majority opined: Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet . . . it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis [withstand beginnings].156 The court in the Writs case was faced with a similar decision. It chose the statist approach. That choice stood in stark contrast to Otiss argument in favor of individual security. The tension between the two approaches will always remain. Although Otis
See generally CLANCY, supra note 49, 5.1.4.2.1. 116 U.S. 616 (1886). 156 Id. at 635. Similar cautions have been made throughout history. See FATHER OF CANDOR, supra note 93, at 51 (Every thing of this sort is practiced with some tenderness at first. Tyranny grows by degrees.).
154 155
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was certainly not the only source for search and seizure principles, he was the first American lawyer to offer a framework, which was a vision offering broad protection of the individual. That vision should continue to inspire and teach us today. The modern era is not freed from making important decisions about the content of the Fourth Amendment by simply examining the past and seeking exact answers. Nor are we freed from the past by assertions that the Amendments terms, specifically its concept of reasonableness, had no meaning to the Framers. Instead, we should be informed by the Framers understanding that search and seizure principles were evolving and complex, as they are now. Yet, as illustrated by Otiss argument, in that era there was a quest to identify objective criteria outside the control of the government to serve as the measure of the propriety of a search or seizure to insure that each person would be secure; that methodology should inform us today as to how to measure reasonableness. Sometimes there is a broader recognition that the Amendment was designed by the Framers to protect individuals from unreasonable governmental intrusion.157 Such a view maintains that the Framers intended not only to prohibit the specific evils of which they were aware, but also, based on the general terms they used, to give the Constitution enduring value beyond their own lifetimes.158 In other words, according to that
157 See, e.g., United States v. Chadwick, 433 U.S. 1, 9 (1977) (What we do know is that the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth.); United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972) (Though the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance.); Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (If times have changed, reducing everymans scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.); United States v. Lefkowitz, 285 U.S. 452, 467 (1932) (rejecting literal construction of words in favor of Amendments purpose); Boyd, 116 U.S. 616 (1886) (Asserting that the Fourth Amendment should be interpreted liberally in favor of the security of the person, the Court stated: It is the duty of courts to be watchful for the constitutional rights of the citizens and against any stealthy encroachments thereon.). 158 See JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 1-2 (1980) ([T]he Constitution proceeds by briefly indicating certain fundamental principles whose specific implications for each age must be determined in
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view, the chief interpretative tool is to be consistent with the Framers values but not mired in the details of the search and seizure practices of 1791. The lessons of history are not inconsistent with the belief that the Constitution is a living document. Historical analysis is arguably important primarily to identify the values of the Framers, which should be used to inform the Courts adaptation of the Fourth Amendment to modern conditions. Otiss argument offers us continued guidance as to the identification of values, that is, what is protected and that search and seizure principles should be guided by the rule of law and not of men. What was protected was a fundamental, indefensible right.159 Otis offered criteria for proper searches and seizures to implement the rule of law: establish objective criteria outside control of the government to measure propriety of search and seizure. Significant aspects of Otis arguments became elements of Article 14 and Fourth Amendment structure and jurisprudence. They include: identifying the right to be secure as the interest implicated by a search or seizure; listing the home as a protected place; utilizing the common law search warrant as a model for when warrants can issue; defining unjustified intrusions as unreasonable; and indicating that probable-cause based searches and seizures are proper. More broadly, Otiss concerns about the need for certain procedures, the scope of intrusions, and the arbitrary use of authority, should have continued importance in search and seizure jurisprudence of this era. Underlying all of those arguments and principles was a quest for objective criteria outside the control of the executive authority to measure the legitimacy of a search or seizure.
contemporary context . . . . That the complete inference will not be there because the situation is not likely to have been foreseenis generally common ground.); Joseph D. Grano, Rethinking the Fourth Amendment Warrant Requirement, 19 AM. CRIM. L. REV. 603, 620 (1982) (The underlying grievances are certainly relevant to the interpretative task, but constitutional provisions cannot be properly viewed simply as shorthand statements for the specific grievances that gave rise to them.); James J. Tomkovicz, California v. Acevedo: The Walls Close in on the Warrant Requirement, 29 AM. CRIM. L. REV. 1103, 1137 (1992) (Constitutional analysts generally agree that the document was meant to be more than a mere catalogue of forbidden actions. The Framers intended that the underlying values be honored.). 159 See QUINCY, supra note 13, at 483-85 (1865).
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The Fourth Amendment is an instrument, that is, a gatekeeper, that keeps out the government. The gatekeeper does not ask why one desires to exclude the government; it simply follows orders. As a gatekeeper, the Amendment permits other rights to flourish. But those rights can only flourish if the gatekeeper performs its functionand that function should be informed by the spirit of James Otis.
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MISSISSIPPI LAW JOURNAL

SYMPOSIUM WILLIAM REHNQUISTS FOURTH AMENDMENT

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Mississippi Cases Editor EVAN PARROTT

Faculty Advisors DEBORAH H. BELL KRIS GILLILAND JACK NOWLIN

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THE IMPORTANCE OF JAMES OTIS ........................................................................... Thomas K. Clancy 48 7

FOREWORD WILLIAM REHNQUISTS FOURTH AMENDMENT 2012 FOURTH AMENDMENT SYMPOSIUM

One author has stated:

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APPENDIX 1. The Majority Opinions of William Rehnquist as Chief Justice

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2. The Concurring Opinions of William Rehnquist as Chief Justice

3. The Dissenting Opinions of William Rehnquist as Chief Justice35

In Minnesota v. Olson, 495 U.S. 91 (1990), he dissented without an opinion.

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4. The Majority Opinions of William Rehnquist as Associate Justice

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5. The Concurring Opinions of William Rehnquist as Associate Justice

6. The Dissenting Opinions of William Rehnquist as Associate Justice

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