4th Amendment

*Note: Plenipotentiary was unable to be near a computer today, so I'm posting this on his behalf* -bd

A lot of people have been writing about deficient news coverage and the oversimplification of ideas, so I'm going to take a current news topic, find a tired dichotomy and present a new idea with some historical context. The Supreme Court has been getting a lot of attention lately with Justice Souter's pending retirement. Other than the speculation over the identity of new appointments, there seems to be a fascination with boiling down all legal philosophies into originalists vs. judicial activists. Take the 4th amendment (search and seizure) as an example. Since modern criminal defense largely involves trying to exclude evidence from trial, the 4th amendment is probably the most commonly cited amendment. Conservatives (originalists) argue the protections of excluding evidence into court are absent in the Constitution and exonerate criminals on technicalities. Liberals defend the exclusionary rule on the basis that it protects innocent people from over-aggressive police searches, as intended by the Framers. In practice, these positions become contorted. Of course, defense attorneys don't cite the amendment but rather the precedent of cases that interpreted if a search was legitimate. Most 4th amendment cases that make their way to the Supreme Court hinge on whether a search occurred at all and thus whether the amendment's protections apply. Touching someone's bag is not a search, but squeezing the bag is. A drug-sniffing dog is not a search, nor are any sort of mechanical or electronic detectors. These decisions strike me as narrow cornerstones of jurisprudence regardless of their consequences. How did we get here?

Starting at what is roughly the begining, 17th century Britain saw trade increase. When Parliament passed customs on imported goods, a legal system was needed to justify search and seizure of smuggled goods. The Exchequer would issue general warrants, also called Writs of Assisstance to allow customs agents to search goods without any restrictions on the time or location. In modern legal terminology, customs agents did not need to secure a warrant beforehand or establish probable cause to execute a search. These warrants were obviously controversial in colonial Massachusetts. The issue of requirements for warrants became important when a radical British MP, John Wilkes, was arrested for sedition against the government. Wilkes filled suit against the secretary who ordered the warrant as well as the agents who carried it out, claiming the government had illegally trespassed on his property. Setting another legal precedent, Wilkes also filed for punitive damages to stiffle future illegal trespasses. Wilkes was ultimately victorious and his case made an immediate impact on legal thinking during the Framing era. In both Colonial and then American courts, lawyers would frequently file and win trespass actions against the police. Warrants, even when properly issued, did not protect the police or judges from judicial action. The Court currently argues between two standards. One is whether citizens have a reasonable expectation of privacy (set by Johnson v United States in 1948). The other standard relies on whether police had probably cause to execute a search.

Many would claim that by enumerating proper legal procedure, citizens gained protections against improper searches. However, other legal scholars like Akhil Reed Amar argue that this process protects officers from trespass suits and therefore strays from the original intent and practice of the 4th amendment in the Constitutional era. I find this to an interesting argument because although its obviously an Originalist argument, it runs counter to anything either bloc of Supreme Court Justices would argue. Amar argues that warrants stray from the 4th amendment which hurts the police and innocent victims of searches. Both harms rise from favoring a standard of probable cause over reasonableness. The difference has to do largely with a means/ends debate. Under the legal standards of probable cause, searches are justified by police officers rationale for a search which is supporting by the production of evidence. If a search bears fruit, the rationale of probable cause is vindicated. Reasonableness, Amar claims, should demand that searches and arrests be carried out in a manner fitting the circumstances. On face, I'm leery but at least Amar's argument is interesting. If police carry out a search and obtain evidence, but do so in a brutal or unreasonable fashion, they can be subject to suits filed by the victims. There is no way to fit a discussion of the manner in which searches or arrests are carried out into a standard of probably cause. Amar also argues that some searches are reasonable for cases like kidnapping but not for shoplifting. By sticking with probable cause, any manner of search is justified regardless of the circumstances or crime police suspect has occurred. I guess I might not mind if there's a road block to search cars during a kidnapping case, but the same road block to search for shoplifted goods is patently absurd but currently justified by probable cause.

I wanted to write about one author's views on the 4th amendment because I think that there is a real discussion going on in legal circles, a discussion that all too often goes on unheard by those outside the field. Its difficult to find where to begin wading into a specialized area, like Constitutional law and history, but since everyone on this blog has fairly advanced training we might be able to introduce each other to some new and interesting ideas.