Mimesis Law
14 October 2019

The Supreme Court Goes Back To Work On The Fourth Amendment

Feb. 23, 2016 (Mimesis Law) — As a number of people pointed out, it did not take long for the death of United States Supreme Court Justice Antonin Scalia to become the hottest political topic of the day. Democrats see the opportunity for President Obama to place a third justice on the Court, leaving a significant fingerprint on the judicial system. Republicans have set up a showdown over whether there can even be a nomination, vowing to block anybody Obama names.

Lost in all of this political maneuvering is the core business of the United States Supreme Court. It’s not sitting up there in Washington to become the pawn in a meaningless game of political pandering. It decides real cases, involving real people. The political games being played over a potential Supreme Court nominee aren’t games. This stuff is important.

American citizens seem to know very little about the Supreme Court and how it works. Most people probably think it doesn’t have much effect on their daily life. Wrong. While the presidential candidates throw out soundbites about the impending war over the next Supreme Court nomination, the Court is actually working on cases you need to care about it. Starting with one of the first cases it heard without Justice Scalia.

Yesterday, the Court heard argument in a Fourth Amendment case that may have broad implications. Or, since there are only eight justices and a tie is possible, may have no implications. The Fourth Amendment, in case you have forgotten, is the one that is supposed to keep the police from kicking down your door or harassing you on the street for no reason.

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…

In Utah v. Strieff, the Court is considering what happens when an investigative stop is illegal, but the person stopped has an outstanding arrest warrant. The police stopped Strieff and questioned him because they thought he might have information on a drug house. But they didn’t have any real reason to stop him, so the stop violated the Constitution. After the police stopped him, they got lucky. Strieff had an outstanding arrest warrant. That meant the police could arrest him.

This presents an interesting Fourth Amendment question. The police can’t just stop people whenever they want for any old reason. But if you have an arrest warrant, the police can arrest you. And then they can search you. So this case decides what happens when the illegal stop meets the legal search.

The answer would seem simple if you like the Fourth Amendment. The stop was illegal and everything that comes after it gets the boot. Of course, the answer would also seem simple if you think the Fourth Amendment is a loophole to turn criminals loose. The stop revealed criminal activity, so good work by the police.

See what happened there? Depending on how you feel, two totally different results.

Orin Kerr frames this case as a big turning point for the exclusionary rule. That’s the rule that requires illegally obtained evidence to be thrown out. There are two schools of thought on the exclusionary rule. Kerr frames them as a traditional view or a deterrence based-view:

The “fruit of the poisonous tree” doctrine is a proximate-cause inquiry. The idea is that when there is a complicated path from an illegal search or seizure to the discovery of evidence, the evidence should be subject to suppression when the illegal search or seizure was the proximate cause of the discovery of the evidence.

On the other hand, if there is only an attenuated connection between the constitutional violation and the discovery of the evidence, then the violation is not the proximate cause of the discovery and the evidence should come in despite the violation… Officers are most culpable and most easily deterred about the reasonably foreseeable consequences of their acts that are proximately caused by them.

On one hand, if the illegal search results in evidence of a crime, the evidence gets thrown out because of the bad search. On the other hand, if the evidence was found after an illegal search, but not necessarily because of the search, it doesn’t get thrown out. The Supreme Court hasn’t really made up its mind yet as to which theory wins, because it has previously decided cases both ways.

So for Utah v. Strieff, the argument could go also either way. USA Today reports the Court’s liberal and conservative members seemed split 4-4 at oral argument, so with only 8 justices, a tie is possible.

Justice Scalia, for all the hype about his friendliness to the criminal defendant, seemed to side with the police in these kinds of cases. If this decision does break down along liberal and conservative lines, his absence may be a very significant factor in the future of an important constitutional amendment.

More importantly, these are the kinds of cases the Supreme Court hears. The politicians and political pundits have turned the Supreme Court into nothing more than another campaign issue. People have no understanding of the Court’s day to day work. They don’t get the practical effect the Court has on their lives. As a result, they don’t really care.

Cases like Utah v. Strieff will affect people’s lives. The question considered by this case is not academic. Whether law enforcement can pull you over or stop and question you for no reason is a big deal. And no matter how you view this case, that is what is at stake at the most basic level.

Justice Robert Jackson, dissenting in 1949 from the opinion in Brinegar v. United States, explained why the protection from unreasonable search and seizure was important to everyone, not just the defendant who might benefit from it:

[Fourth Amendment rights], I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

Politicians are now claiming this election year holds the key to control of the Supreme Court, and in turn, that may be the key to the “important issues” the parties are battling over. Yet the issues people don’t spend much time thinking about or debating, like the Fourth Amendment, are the ones that should matter.

In between all the clamoring and fighting, maybe someone will point out that politics shouldn’t control our daily lives, so it certainly shouldn’t control the United States Supreme Court.

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