Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 3
Catering to the Constable
The Court’s Latest Fourth Amendment Cases Give the Nod to Police
By Margaret Paris and Andrew E. Taslitz
Margaret Paris, is a law professor and associate dean for academic affairs at the University of Oregon School of Law. She is also a member of the Criminal Justice magazine editorial board.
Andrew E. Taslitz, is a law professor at Howard University School of Law in Washington, D.C., and chair of the magazine’s editorial board and recent member of the Section Council.
The United States Supreme Court’s latest search and seizures decisions reveal a consistent theme: The Court is increasingly willing to compromise the ideal of individualized justice underlying the Fourth Amendment in order to facilitate on-the-street policing. Traditionally, the Fourth Amendment is thought to require individualized suspicion—i.e., reason to believe that a particular individual committed a particular crime—and adequate standards of reliability for the evidence upon which police and courts may base their findings of individualized suspicion. But in its latest cases, the Court appeared willing to relax these requirements in order to accommodate law enforcement practices. Specifically, the Court:
• reduced the quantity and quality of evidence required for probable cause (Maryland v. Pringle);
• increased the degree of intrusiveness of the actions in which the government may engage based only on reasonable suspicion (United States v. Banks; Hiibel v. Sixth Judicial District); and
• widened the scope of searches permitted without any individualized suspicion whatsoever (United States v. Flores-Montano; Thornton v. United States; Illinois v. Lidster).
To be fair, the Court also overturned convictions based on obvious police errors involving:
• a full-blown arrest that concededly was not supported by probable cause (Kaupp v. Texas); and
• a flawed search warrant that obviously failed the particularity requirement (Groh v. Ramirez).
Following these themes, we have organized the Court’s cases into two categories: those accommodating law enforcement practices at the expense of individual justice, and those striking down police errors. We have excerpted dissenting opinions where they help to clarify important issues. We have also mined majority opinions and dissents to illuminate some hints about where the Court is headed in the future on search and seizure issues. Finally, we have offered concluding thoughts about the consequences of the Term’s decisions and the opportunities and challenges facing prosecutors and defense counsel in the years ahead.
Decisions accommodating law enforcement practices
Maryland v. Pringle: definition of probable cause. Perhaps one of the most important—although unheralded—law enforcement cases this Term was Maryland v. Pringle, 124 S. Ct. 795 (2003). There a unanimous Court turned a cold eye to a state court’s efforts to infuse rigor into the probable cause requirement. The case began when an officer stopped a speeding car containing three occupants: the driver-owner; front-seat passenger Pringle; and a back-seat passenger. When the driver, in response to the officer’s request to produce his license and registration, opened the glove compartment, the officer saw inside it a large amount of rolled-up cash. The driver was questioned and consented to a vehicle search, which revealed five glassine plastic bags containing cocaine behind the back-seat armrest. Crucially, the armrest, which was of the type that goes up and down, was upright—flat up against the seatback—at the time of the stop, and the drugs were invisible with the armrest in that position. It was only when the officer pulled down the armrest that he found the drugs between it and the seatback. There was no indication of which, if any, of the men was aware of the drugs. The officer questioned all three, telling them that he would arrest them all unless someone admitted to ownership of the drugs. None admitted to ownership of either the drugs or the money. The officer then made good on his threat, arresting all three men.
At the police station, Pringle confessed to ownership of the drugs and exonerated the other two men, who were released. He was prosecuted and unsuccessfully moved to suppress his confession, arguing that it was the fruit of an unlawful arrest—the officer lacked probable cause to suspect any of the three men individually, he argued. Upon appeal of his conviction, the Court of Appeals of Maryland reversed, agreeing with him that in the absence of evidence that the drugs (and, for that matter, the money) were visible to him before the stop, probable cause did not exist to arrest him. The court reasoned that because the substantive criminal law of Maryland concerning “possession” required proof that he knew that the drugs were present and had dominion and control over them, probable cause to arrest him required evidence of his knowledge, dominion, and control. Pringle’s mere presence in the car, in close proximity to the cocaine, did not supply this. Nor did the wad of money in the closed glove compartment change the picture, because it, too, was not shown to have been visible to Pringle at the time of arrest. The prosecution pointed out that someone in the car was involved with the drugs, suggesting that police ought to be able to arrest everyone present in order to sort it all out later. The state court did not think much of that argument:
Under [the prosecution’s] reasoning, if contraband was found in a twelve-passenger van, or perhaps a bus or other kind of vehicle, or even a place, i.e., a movie theater, the police would be permitted to place everyone in such a vehicle or place them under arrest until some person confessed to being in possession of the contraband. Simply stated, a policy of arresting everyone until somebody confesses is constitutionally unacceptable.
(Pringle v. State, 805 A.2d 1016, 1028 (2002).)
In the United States Supreme Court, though, the prosecution’s position garnered more respect. The Court quoted widely from former landmark decisions such as Illinois v. Gates in order to stress that the probable cause standard gives “ ‘fair leeway for enforcing the law in the community’s protection’ ” and remains “ ‘a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ ” (124 S. Ct. at 800.) So defined, the Court said, probable cause surely existed to arrest Pringle. It was “entirely reasonable” to infer “that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.” (Id. at 800 n.01 (emphasis added).) And in the absence of facts singling out any one of them (such as an admission), the police lawfully could arrest all three.
Several points about the Court’s reasoning are noteworthy. First, there was no particularized evidence whatsoever that Pringle knew about the drugs or the money. Of course, the drugs and the cash were accessible to any person in the car, but the Court apparently inferred Pringle’s knowledge entirely from the fact of accessibility. To do that, the Court relied on a very broad generalization, namely that a passenger in a car will “often be engaged in a common enterprise with the driver.” (Id. at 801 (internal quotation marks omitted).) The Court refined this generalization by making the further generalization that a drug dealer would likely not let an “innocent person” into a car for fear that such a person could later testify against the dealer. (Id.) Both generalizations are questionable. Our own life experiences (one of us was a prosecutor, the other a defense attorney) teach us that the contrary may often be true—that is, law-abiding people can be thoroughly unaware of their friends’ criminality. Although some degree of generalization is appropriate to legal analysis, the Court’s reliance on two questionable generalizations wound up reducing the level of individualized suspicion required for probable cause.
Second, the Court in Pringle relied on the refusal of any one of the three suspects to admit to owning the drugs. Considering such evidence in connection with the probable cause determination seems to violate the Fifth Amendment privilege against self-incrimination—a point made by Pringle in his brief, but thoroughly ignored in the Court’s opinion. (See Maryland v. Pringle, Brief of Respondent at 31-34 (July 18, 2003) (arguing that Pringle and the other two occupants were free to raise the privilege, which would be infringed by an “arrest now, confess later” law enforcement strategy).) Furthermore, silence—the absence of certain evidence—plus two contestable generalizations is a thin reed on which to rest the conclusion that Pringle had dominion and control over the drugs.
Third, the Court conceded that the evidence was equally consistent with Pringle, or one of the other occupants, or all three of them, knowing of the drugs’ presence. This is but another way of saying that there was a one-in-three chance that Pringle had dominion over the drugs. But a one-third probability is widely considered by judges to be far more consistent with reasonable suspicion than probable cause, despite the Court’s protestations that probable cause cannot be quantified. (See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 VAND. L. REV. 1293, 1325, 1331-32 (1982) (federal judges in a survey described “probable cause” on average as requiring 44.52 percent likelihood of guilt and “reasonable suspicion” on average as requiring 31.34 percent likelihood).) The one-in-three chance fails to support even an acceptable inference that Pringle “constructively possessed” the drugs, because the constructive possession doctrine requires proof that an individual had or shared dominion and control despite the fact that he or she may not have had actual possession.
There clearly was probable cause to confiscate the cocaine. But when the Court found probable cause to arrest Pringle, it cheapened the probable cause concept in a way that is hard to square with the Framers’ commitment to individualized justice. The Maryland courts had the better judgment by far.
U.S. v. Banks: application of knock-and-announce rule. A federal drug case gave the Court the opportunity to water down the knock-and-announce rule, which requires officers executing warrants to minimize the intrusiveness of their entry. In United States v. Banks, 124 S. Ct. 521 (2003), the Court faced the question of how long a period of time the police must wait after knocking and announcing before they may forcibly enter a residence. Agents arrived at Banks’s two-bedroom apartment at 2 p.m. on a weekday afternoon to execute a search warrant for cocaine. Officers at the front door called out “police search warrant” and rapped hard enough on the door to be heard by officers at the back door. After waiting 15 to 20 seconds with no answer and no indication whether anyone was home, the officers broke down the front door with a battering ram. Banks had been in the shower and did not hear the police knocking. He was just exiting the shower as the police entered. Their search produced weapons, crack cocaine, and other evidence of drug dealing. Banks moved to suppress the evidence on the ground that the police waited an unreasonably short time before forcing entry, violating both the Fourth Amendment and the federal knock-and-announce statute.
The district court denied the motion, and Banks pled guilty while reserving his right to challenge the search on appeal. The Ninth Circuit reversed, ordering suppression, after detailing a list of numerous factors to guide the reasonableness inquiry and dividing the possible knock-and-announce circumstances into four categories, each with its own test of reasonableness, placing the current case in category four—entries in which no exigent circumstances exist and in which forced entry by destruction of property is required. That category, the Circuit Court concluded, mandated an “explicit refusal of admittance or a lapse of an even more substantial amount of time” than for cases in the other three categories.
The Supreme Court reversed, rejecting the Ninth Circuit’s categorical, multifactor approach. Said the Court, “it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones.” (Id. at 525.) Indeed, continued the Court, “no template is likely to produce sounder results than examining the totality of the circumstances in a given case.” (Id.) There was no evidence that the police knew that Banks was in the shower, and, given the risk that cocaine might be flushed down the toilet or otherwise disposed of quickly, the 15- to 20-second wait was appropriate, even without an express refusal of entry:
On the record here, what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter. . . . And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine.
(Id. at 527.)
In weighing the totality of these case-specific circumstances, the Court applied a reasonable suspicion test, in which the question was whether there was adequate evidence to establish reasonable suspicion of exigent circumstances that required prompt entry. That test was analogous to the one used in determining whether the knock-and-announce requirement could be forgone entirely. Thus the Court stressed that the usual, nontechnical, flexible test for reasonable suspicion, which the Court articulated in its preceding Term in United States v. Arvizu, 534 U.S. 266 (2002), applied:
[W]e recently disapproved a framework for making reasonable suspicion determinations that attempted to reduce what the [Ninth] Circuit described as “troubling . . . uncertainty” in reasonableness analysis, by “describ[ing] and clearly delimit[ing]” an officer’s consideration of certain factors. . . . Here, as in Arvizu, the Court of Appeal’s overlay of a categorical scheme on the general reasonableness analysis threatens to distort the “totality of the circumstances” principle, by replacing a stress on revealing facts with [a] resort to pigeonholes. . . . Attention to cocaine rocks and pianos tells a lot about the chances of their respective disposal and its bearing on reasonable time. Instructions couched in terms like “significant amount of time,” and “an even more substantial amount of time” . . . tell very little.
(124 S. Ct. at 528.)
Hiibel v. Sixth Judicial District: permissibility of ID requests. In Hiibel v. Sixth Judicial District Court of Nevada, 124 S. Ct. 2451 (2004), the Court faced the question whether a suspect stopped upon reasonable suspicion can be arrested for merely refusing an officer’s request for identification by name. The Court answered in the affirmative, resolving years of speculation on the issue.
In Hiibel, a deputy sheriff had been dispatched to investigate a telephone call by someone who reported seeing a man assault a woman in a red and silver GMAC truck on Grass Valley Road. When the officer arrived on the scene, he found a man standing by a parked truck, a woman sitting inside it, and skid marks in the gravel behind the vehicle, suggesting to the officer that the car had stopped suddenly. The officer approached the man, who appeared to be intoxicated, and told him that he was investigating a report of a fight. The officer requested identification, and the as-yet-unidentified man asked him why he wanted to see it. The officer explained that he was conducting an investigation and wanted to find out who the unidentified man was and what he was doing there. After continued refusals to comply, the man taunted the officer—saying, in essence, “arrest me and take me to jail.” In all, the officer made 11 requests for identification, warned the man that he would arrest him, and waited for several minutes before doing exactly that.
The officer was acting pursuant to a Nevada statute that authorizes a peace officer to detain anyone under circumstances reasonably indicating that the individual had committed a crime. The officer may do so, however, only to ascertain the person’s identity and the suspicious circumstances “surrounding his presence abroad.” (NEV. REV. STAT. § 171.123 (2003).) The statute further obligates detainees to identify themselves, but declares that they “may not be compelled to answer any other inquiry of any peace officer.” (Id.)
Relying on this statute, the state charged the man, later identified as Larry Hiibel, with willfully obstructing a public officer in discharging a legal duty of his office. Hiibel was convicted, and the Sixth Judicial Circuit affirmed, rejecting Hiibel’s Fourth and Fifth Amendment challenges. The Supreme Court of Nevada on further review also rejected the Fourth Amendment challenge, while denying without opinion Hiibel’s request for a hearing to resolve his Fifth Amendment challenge. The United States Supreme Court granted certiorari on both issues (here we address only the Fourth Amendment question) and affirmed Hiibel’s conviction.
The Court acknowledged that stop-and-identify statutes, like the one before it, must avoid undue vagueness in order to pass scrutiny and must require an initial stop based on specific, objective facts establishing reasonable suspicion to believe that the suspect was involved in criminal activity. The Nevada statute met both requirements. The only question implicating the Fourth Amendment, said the Court, was whether, under Terry v. Ohio, officers can coerce an answer to the identification question upon threat of criminal prosecution. The Court found ample justification for upholding a state legislature’s choice to give the police such authority:
Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
(124 S. Ct. at 2458.)
The Court brushed aside Hiibel’s argument that statements in the Court’s earlier opinions, including Terry itself, emphasized that a person detained can be questioned but is “not obligated to answer,” saying those statements meant only that the Fourth Amendment itself imposed no obligations on the citizen. Here, by contrast, a statute created such an obligation. The statute had “an immediate relation to the purpose, rationale, and practical demands of a Terry stop” because the “threat of criminal sanction helps ensure that the request for identity does not become a legal nullity.” (Id. at 2459.) Nor does the statute significantly add to the intrusiveness of a Terry stop: “[T]he Nevada statute does not alter the nature of the stop itself: it does not change its duration . . . or its location.” (Id.) Furthermore, explained the Court:
Petitioner argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit. . . . These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. . . . Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. The Court noted a similar limitation in Hayes, where it suggested that Terry may permit an officer to determine a suspect’s identity by compelling the suspect to submit to fingerprinting only if there is “a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection to that crime.”. . . It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment.
(Id. at 2459-60.)
Justice Breyer, joined by Justices Souter and Ginsburg in dissent, took the position that requiring a suspect to answer an officer’s questions—even if only seeking the suspect’s name—went beyond the limited intrusion justified by Terry. For the dissenters, the precedent was clear. Most particularly, Justice White, in his concurring opinion in Terry, had said: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” (Id. at 2465 (Breyer, J., dissenting) (internal quotation marks omitted).) Sixteen years later, in Berkemer v. McCarty, 468 U.S. 420 (1984), the full Court had also declared that “an officer may ask the [Terry] detainee a moderate number of questions to determine his identity and try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” (Id. (emphasis added by Justice Breyer).) Even more recently, in Illinois v. Wardlow, 528 U.S. 119 (2000), the Court had explained that allowing officers to stop and question a fleeing person is “quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” (Id. at 125.) The Hiibel dissenters summarized their precedential argument:
There is no good reason to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to the Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. . . . Administrative considerations also militate against change. Can a state, in addition to requiring a stopped individual to answer “What’s your name?” also require an answer to “What’s your license number?” or “Where do you live?” Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances.
(124 S. Ct. at 2465-66).)
In light of the Hiibel decision, one might expect statutes similar to the one in Nevada to proliferate. We suggest that readers keep a close eye on the scope of these: are they limited, as the Nevada statute was, to requiring identification by name? Or do they go further, requiring the production of identification papers? The Court was careful to restrict its holding in Hiibel to the name-only requirement in Nevada’s statute, but law enforcement interests that drive legislation might encourage broader provisions that will have to undergo future judicial testing.
U.S. v. Flores-Montano: the scope of government authority in border searches. In United States v. Flores-Montano, 124 S. Ct. 1582 (2004), the Court enlarged government authority to conduct intrusive vehicle searches at the border. There, it announced that the “Government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank.” (Id. at 1587.) The dispute arose when customs inspectors removed and disassembled Flores-Montano’s gas tank as he waited to enter the United States from Mexico. The gas tank search (including waiting for the mechanic) took about an hour and resulted in the discovery of marijuana and the prosecution of Flores-Montano for federal drug crimes. The district court granted his motion to suppress on the ground that the government needed reasonable suspicion—which it conceded it did not have—to disassemble the gas tank. The court of appeals affirmed, agreeing that reasonable suspicion is required for “non-routine” border searches, with the degree of a search’s intrusiveness being the “critical factor” in determining whether the search was routine.
In reversing, the Supreme Court rejected the reasonable suspicion requirement. The Court held instead that the gas tank search was within the government’s authority and noted, “While it may be true that some searches of property are so destructive as to require a different result, this was not one of them.” (Id.) Central to the Court’s holding was that a search of property, particularly of a car, rather than of a person, was involved. The Court also emphasized that Flores-Montano’s privacy interest was small—his expectations of privacy being “less at the border than it is in the interior.” (Id. at 1586.) The Court noted that it had long recognized that automobiles seeking to enter the United States may be searched. Said the Court, “It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile’s passenger compartment.” (Id.) The Court did acknowledge, however, that there might be circumstances in which a border search of property would be unreasonable because of the “particularly offensive manner” in which it was carried out. (Id. at 1587 n.2.) Finally, the Court readily dismissed Flores-Montano’s claimed right not to be subjected to delay at the international border, finding no case supporting such a right, but also noting that a delay of one to two hours (the Government conceded at oral argument that gas tank searches could take up to two hours) was to be expected at an international border.
Thornton v. U.S.: applicability of vehicle search-incident-to-arrest rule. The search-incident-to-arrest rule applies to vehicles, permitting officers to make a warrantless search of a vehicle’s entire passenger compartment upon arrest. After the Supreme Court first articulated this rule in New York v. Belton, 453 U.S. 454 (1981), questions were raised about when the rule applies: Does it depend on an interaction with police that began when the arrestee was in a vehicle, or did it have broader applicability? In Thornton v. United States, 124 S. Ct. 2127 (2004), the Court opted for broader applicability, holding that the Belton rule applies regardless of whether the police interaction was initiated before or after the arrestee left the vehicle. The Court adopted a rule linking Belton’s applicability to temporal and physical proximity between the arrestee and the vehicle, explaining that “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.” (Id. at 2131.) As a result of these concerns and its desire to maintain a bright-line rule, the Court held that “[s]o long as an arrestee is the sort of ‘recent occupant’ of a vehicle as petitioner was here, officers may search that vehicle incident to arrest.” (Id. at 2132.) In the case at hand, Marcus Thornton had pulled into a parking lot and gotten out of his car before a police officer initiated contact with him, although the officer suspected that Thornton had been aware of him and had parked in an effort to evade contact with him.
Interestingly, despite the clear five-Justice majority supporting Thornton’s holding, the case revealed disagreement on the Court about Belton’s continued viability. Justice Scalia concurred in the judgment upholding the search, but he refused to join the Court’s opinion and rationale. Justice Scalia would abandon Belton’s rule and underlying rationales (ensuring officer safety and preventing destruction of evidence), which he viewed as not really at issue in most situations in which Belton applies. He would substitute this rule: Officers may search vehicles upon arrest if they have reason to believe that evidence “relevant to the crime of arrest” might be found in the vehicle. (Id. at 2137 (Scalia, J., concurring in the judgment).) Justice Scalia acknowledged that his proposed rule “is a return to the broader sort of search incident to arrest that we allowed before Chimel,” but he found support for it in the Constitution and in prior case law, and he would limit it “to searches of motor vehicles, a category of ‘effects’ which give rise to a reduced expectation of privacy.” (Id.) Explaining his proposed rule, he stated:
There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.
(Id. at 2136.)
Justice Ginsburg joined Justice Scalia’s opinion. Justice
O’Connor indicated that she found his reasoning compelling, but she did not endorse his proposed rule outright because of her “reluctan[ce] to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit.” (Id. at 2133 (O’Connor, J., concurring in part).) Justice Stevens, joined by Justice Souter, dissented. He favored retention of the “initiation rule,” explaining that Belton “is not needed for cases in which the arrestee is first accosted when he is a pedestrian, because Chimel itself [the search-incident-to-arrest rule as applied to individuals] provides all the guidance that is necessary.” (Id. at 2140 (Stevens, J., dissenting).)
Illinois v. Lidster: permissibility of investigative roadblocks. Roadblocks have met with mixed success in the Court. Under its rulings, police cannot use roadblocks if their primary purpose is to catch unsuspecting criminals in the act, but roadblocks may be acceptable if their primary purpose is to serve non-criminal-law-enforcement purposes, such as taking drunk drivers off the roads. The Court’s most recent roadblock case, Illinois v. Lidster, 124 S. Ct. 885 (2004), expanded the circumstances in which police can set up roadblocks by narrowly defining the prohibited category of “traditional criminal law enforcement purposes.” In Lidster, one week after a fatal hit-and-run accident, police set up a checkpoint to locate witnesses to the crime. As each car approached the checkpoint, an officer would stop the car for 10 to 15 seconds to ask whether its occupants had seen the crime and would hand the driver a flyer asking for assistance. When Robert Lidster approached the checkpoint in his minivan, his van swerved, nearly hitting one of the officers. That officer subsequently smelled alcohol on Lidster’s breath, administered a sobriety test, and arrested him. Lidster was convicted of driving under the influence of alcohol and appealed on the ground that much of the evidence against him should have been suppressed as the fruit of an illegal checkpoint seizure. Although the trial court rejected this claim, two Illinois appellate courts accepted it.
In the Supreme Court, Lidster’s claim fared poorly, although there was ample reason to expect otherwise. Unlike in the drunk driving cases, there was no imminent danger to public safety, indeed no “noncriminal-law-enforcement” purpose at all. The sole reason for the roadblock was to investigate crime. Indeed, the Court had recently held in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), that a roadblock to catch people transporting illicit drugs served no immediate safety purpose and was therefore a traditional criminal search requiring probable cause and a warrant (or a recognized exception to the warrant requirement).
But, in Lidster, the Supreme Court upheld the constitutionality of the roadblock, explaining that not all criminal enforcement objectives are the sort that demand presumptive unconstitutionality absent individualized suspicion. “The stop’s primary law enforcement purpose,” concluded the Court, was “not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others.” (124 S. Ct. at 889.) The Court continued: “The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.” (Id.) The Court said that in such a situation it makes no sense to require individualized suspicion: “Like certain other forms of police activity, say, crime control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.” (Id.) Additionally, concluded the Court:
[I]nformation-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. The police are not likely to ask questions designed to elicit self-incriminating information. And citizens will often react positively when police simply ask for their help as “responsible citizen[s]” to “give whatever information they may have to aid in law enforcement.”
Furthermore, said the Court, the law ordinarily allows police to seek voluntary public cooperation in solving crime; the Fourth Amendment “does not treat a motorist’s car as his castle”; the traffic delay was brief; and proliferation of similar checkpoints was unlikely given “limited police resources and community hostility to related traffic tie-ups.” (Id. at 889-90.) Therefore, the Court declared that a flexible balancing test—like that used in the drunk-driving roadblock cases—was appropriate (indeed, the Court reclassified those cases as involving “special law enforcement concerns”). (Id. at 889.) The information roadblock in Lidster survived this balancing test because the stop was tailored to serve a grave public concern (finding a killer) in that it was located where there was a good chance of finding drivers knowledgeable about the crime, the delay (including time waiting in a line of cars) was brief (a few minutes at most), and the contact provided little reason for anxiety or alarm, for all cars were temporarily stopped and there were no allegations of discriminatory or other unlawful police behavior during questioning.
The Court’s disposition was not unanimous. Justice Stevens, joined by Justices Souter and Ginsburg, agreed with the majority’s primary purpose analysis, but favored a remand for additional fact finding on the application of the balancing test. Justice Stevens questioned whether there were less intrusive but equally or even more effective alternatives, such as placing flyers on postal employee cars, the victim having just finished work there before the fatal accident. Justice Stevens also questioned whether the annoyance of delay for drivers at a location where many were leaving a factory at the end of a shift, and the accompanying large surge of vehicles, could be justified by an investigatory method so likely to be ineffective. Because the roadblock was unpublicized, he also speculated that waiting drivers, who would not know the purpose of the search until reaching the checkpoint, might be alarmed at being ensnared in an unexpected midnight roadblock—facts and possibilities entirely ignored by the majority.
Decisions overturning obvious police errors
Kaupp v. Texas: definition of arrest and use of post-arrest statements. The Court was as quick to condemn obviously unconstitutional law enforcement practices as it was to expand law enforcement authority in close cases. In Kaupp v. Texas, 538 U.S. 626 (2003), decided late in the previous Term, the Court vacated a conviction based in part on a confession obtained after an unlawful arrest. Kaupp involved a 17-year-old boy suspected of complicity in the murder of a 14-year-old girl. The police admittedly lacked probable cause for an arrest. Nevertheless, they awakened the teenager in his bedroom at 3 a.m. with a flashlight, after having been admitted to the boy’s home by his father. One of the officers identified himself and said, “[W]e need to go and talk.” Kaupp said, “Okay.” (Id. at 628.) Two officers handcuffed Kaupp, leading him shoeless and in boxer shorts to a police car, and then drove him to the crime scene and ultimately the police station, where he admitted some part in the crime.
After the trial court denied Kaupp’s motion to suppress his confession as the fruit of an illegal arrest, he appealed. The Texas Court of Appeals affirmed the conviction, concluding (incredibly) that Kaupp consented to accompany the officers to the crime scene and to the police station.
The United States Supreme Court rejected this conclusion, finding no consent on Kaupp’s part, and reaffirmed its rule that, with very rare exceptions, forcible transportation to police headquarters constitutes an arrest requiring probable cause—it cannot be characterized as a less-intrusive seizure that might be justified upon reasonable suspicion.
Despite expressing doubt that the state could succeed in avoiding suppression of the confession, the Court nevertheless remanded the case to the trial court to determine whether Kaupp’s statements fit within the attenuation exception to the exclusionary rule. Under that exception, a confession resulting from an invalid arrest will not be suppressed if it was sufficiently “an act of free will to purge the primary taint of the unlawful invasion.” (Id. at 532 (internal quotation marks omitted).) The burden of persuasion rests on the state, though it may meet that burden by circumstantial evidence. Relevant considerations include compliance with Miranda, “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” (Id. at 633 (internal quotation marks omitted).) None of these considerations is controlling by itself. The Court in Kaupp concluded that these considerations did not bode well for the state upon remand.
Kaupp does not undermine the claim we make about the Court’s willingness to accommodate law enforcement needs, because it was an extreme case. For one thing, it involved a juvenile who presumably would have been more vulnerable to coercion than an adult. For another, the prosecution’s position—that Kaupp had consented to the police action—was absurd. The set of facts in Kaupp allowed the Court to revisit and reaffirm the attenuation doctrine, but to do so in a case so extreme as to leave the police ample discretion in more ambiguous cases or in ones with less severe police intrusions.
Groh v. Ramirez: warrant particularity and lack of good faith. In Groh v. Ramirez, 124 S. Ct. 1284 (2004), the Court dealt with another obvious police error—this one involving a lack of particularity in a search warrant. Groh, a special agent for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, had applied for a warrant to search Ramirez’s Montana ranch for “any automatic firearms or parts of automatic weapons, destructive devices to include but not limited to grenades, grenade launchers, rocket launchers, and any and all receipts pertaining to the purchase or manufacture of automatic weapons or explosive devices or launchers.” (Id. at 1288.) The warrant itself did not specify these or any other items that law enforcement officers were authorized to seize. Instead, in the particularity portion of the warrant, Groh merely listed the Ramirezes’ residence. Moreover, the warrant did not incorporate by reference the items identified in the application, nor did it attach the application, which remained in court under seal.
Writing for a five-person majority, Justice Stevens held the warrant invalid, reiterating that “[t]he Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.” (Id. at 1289.) The requirement serves a “high function,” according to Justice Stevens,
and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant.
(Id. at 1290.)
Justice Stevens insisted that the particularity requirement invests an important role in the judiciary:
. . . unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit. . . . In this case, for example, it is at least theoretically possible that the Magistrate was satisfied that the search for weapons and explosives was justified by the showing in the affidavit, but not convinced that any evidentiary basis existed for rummaging through respondents’ files and papers for receipts pertaining to the purchase or manufacture of such items. Or, conceivably, the Magistrate might have believed that some of the weapons mentioned in the affidavit could have been lawfully possessed and therefore should not be seized. The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request. Even though petitioner acted with restraint in conducting the search, “the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.”
(Id. at 1291-92.)
The Court concluded that the warrant “did [not] make what fairly could be characterized as a mere technical mistake or typographical error.” (Id.) Instead, it was “so obviously deficient” that the Court had to regard the subsequent search as “warrantless.” (Id.) And because the officer himself had prepared the warrant and knew that it was defective when he submitted it to the magistrate, the good faith exception created in United States v. Leon would not apply.
Hints about things to come
Relationship between reasonableness and warrant
clauses. Interestingly, in Groh, the federal agent had conceded in the Supreme Court the invalidity of the warrant. Nevertheless, he urged the Court to find that the search was reasonable under the circumstances despite the absence of a valid warrant. The search, he argued, was reasonable because it was “functionally equivalent to a search authorized by a valid warrant.” (Id. at 1290.) Among the circumstances viewed by Groh as bearing on the search’s reasonableness were (1) the magistrate’s determination that the application established probable cause, (2) the fact that during his execution of the warrant Groh told Mrs. Ramirez what he was looking for, and (3) the fact that Groh’s search and seizure did not exceed the particulars contained in the application.
Justice Stevens rejected Groh’s efforts to decouple the Fourth Amendment’s Warrant Clause from its Reasonableness Clause. The Court’s cases “have firmly established,” he stated, “the basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Id.) He explained further that this “presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the
warrant.” (Id. at 1291.)
But Justices Thomas and Scalia agreed with Groh’s position. Both would decouple the Warrant Clause from the Reasonableness Clause and apply to situations like the one in Groh case-specific reasonableness balancing rather than a categorical rule that presumes that searches not supported by valid warrants or warrant exceptions are constitutionally defective. Moreover, according to Justice Thomas, the search should not be treated as a “warrantless” one:
. . . [A] search conducted pursuant to a defective warrant is constitutionally different from a “warrantless search.” Consequently, despite the defective warrant, I would still ask whether this search was unreasonable and would conclude that it was not. . . .
. . . By simply treating this case as if no warrant had even been sought or issued, the Court glosses over what should be the key inquiry: whether it is always appropriate to treat a search made pursuant to a warrant that fails to describe particularly the things to be seized as presumptively unreasonable. . . .
[I]n contrast to the case of a truly warrantless search, if a warrant (due to a mistake) does not specify on its face the particular items to be seized but the warrant application passed on by the magistrate judge contains such details, a searchee still has the benefit of a determination by a neutral magistrate that there is probable cause to search a particular place and to seize particular items. In such a circumstance, the principal justification for applying a rule of presumptive unreasonableness falls away.
(Id. at 1299-1301 (Thomas, J., dissenting).)
Justice Thomas’s dissent is only the most recent salvo in a long-term debate about the relationship between the Fourth Amendment’s Reasonableness Clause and its Warrant Clause. The Court traditionally has applied a bright-line rule to determine that relationship—holding that where the government engages in law enforcement searches, it must satisfy the warrant clause’s requirements—by obtaining a valid warrant or acting pursuant to a recognized warrant exception—before a search can be found to have been reasonable.
The Groh dissent represents a reminder by three Justices that they would like to decouple the Warrant Clause from the Reasonableness Clause. If the two clauses were decoupled, a valid warrant would no longer be the presumptive requirement. Rather, whether a warrant is required would turn on a case-specific inquiry into what “reasonableness” demands in the particular circumstances of the case. Indeed, according to these Justices, the bright-line rule we describe above has never been as bright as is claimed. As Justice Thomas stated in his Groh dissent, the Court “has vacillated between imposing a categorical warrant requirement and applying a general reasonableness standard.” (Id. at 1298.) He continued:
The precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While “it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness,” the text of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment’s history, which is clear as to the Amendment’s principal target (general warrants), but not as clear with respect to when warrants were required, if ever. Indeed, because of the very different nature and scope of federal authority and ability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides much guidance. . . . I would turn to first principles in order to determine the relationship between the Warrant Clause and the Unreasonableness Clause. . . .
(Id. at 1298-99.)
Warrants for fingerprinting and . . .? In Kaupp, the Court suggested in dicta that it might consider permitting modestly extended seizures of a person from a home or from the street on less than probable cause, albeit under a narrow set of circumstances. These circumstances might include gathering identification evidence. The Court said: “[W]e have never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes . . . absent probable cause or judicial authorization.” (538 U.S. at 630.) But it dropped a footnote at this point and continued: “We have, however, left open the possibility that, under circumscribed procedure, a court might validly authorize a seizure on less than probable cause when the object is fingerprinting” (id. at 631), citing Hayes v. Florida, 470 U.S. 811 (1985). In Hayes, the Court found the warrantless transport of a rape suspect to the station house for fingerprinting on less than probable cause violative of the Fourth Amendment. But the Court noted that it did not necessarily bar reasonable suspicion detentions for fingerprinting where the judiciary authorized them by issuing a warrant, even though based on less than probable cause. Sixteen years before Hayes, the Court had condemned as unconstitutional a roundup of 25 African Americans for questioning and fingerprinting in an effort to identify a rapist. (See Davis v. Mississippi, 394 U.S. 721 (1969).) Again, however, the Court had noted that “because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense.” (Id. at 727.)
Perhaps the Court is preparing to recognize a new category of seizures of the person: one that is less intrusive than an arrest (thus requiring only reasonable suspicion) but more intrusive than a Terry stop (thus requiring judicial supervision via a warrant). The fact that the Court has repeatedly returned to this concept, albeit in dicta, over the course of 35 years suggests that it may be inviting someone to bring the fingerprint—or DNA—warrant issue before the Court. Stay tuned.
Tips for the practitioner
Given the trend that we observe in these cases, it will be harder for defense counsel to win Fourth Amendment motions to suppress. Defense attorneys will want to distinguish this Term’s decisions from their own by emphasizing special vulnerabilities of their clients, highlighting any unusual coerciveness of police conduct, and exposing (and explaining) any unreliability of evidence underlying probable cause findings.
Conversely, when prosecutors oppose motions to suppress they should highlight law enforcement needs and the benefit of rules that enhance law enforcement flexibility. But they also have an important message to convey to police: The Court has drawn some broad limits beyond which it will not go. Police obviously must take care to draw up proper warrant papers, and they should watch out for techniques that smack of coercion (for example, using multiple officers to interview young suspects). Nevertheless, it seems clear that the Court will allow them substantial wiggle room.
And it may be hinting that it is willing to leave more room still. It is always difficult to read a crystal ball, but if our speculation is correct, law enforcement practices will be further accommodated in the next Term. On the docket are Illinois v. Caballes, No. 03-923 (whether the Fourth Amendment requires reasonable suspicion to justify using a drug-sniffing dog during a traffic stop) and Devenpeck v. Alford, No. 03-710 (whether the Fourth Amendment is violated if the charge on which a person is arrested turns out not to be supported by probable cause, even though there was probable cause to make an arrest on another charge). Only time will tell.