http://www.supremecourtus.gov/opinions/07pdf/06-1082.pdf
Discussion here:
http://volokh.com/archives/archive_2008_04_20-2008_04_26.shtml#1209061862
and here:
http://michaeldorf.org/2008/04/driving-on-suspended-fourth-amendment.html
I'm not qualified to assess the constitutional reasoning behind this decision. The fact that the ruling was unanimous gives me some comfort, but it still seems like a continuation of an unbroken trend toward erosion of the exclusionary remedy.
Recourse against the government is frequently unsatisfactory.
But then recourse against anyone in our legal system is not pretty. The typical lawsuit goes through the phases of fired up, beat up, and then fed up, before someone writes a check about which everyone's unhappy.
The typical lawsuit goes through the phases of fired up, beat up, and then fed up, before someone writes a check about which everyone's unhappy.
Very true.
Recourse against the government is frequently unsatisfactory.
Right. That's what's so special about the exclusionary rule; the penalty is severe enough and the probability of incurring it high enough that it actually has a decent chance of affecting police behavior at the margin. Civil remedies, community review boards, and other forms of ex post recourse just aren't salient enough to stop a cop from violating a suspect's rights to make the case.
I think Fourth Amendment jurisprudence went seriously off track with the "good faith exception" (when was that? 1983 or something?), because the police enjoy something approaching a presumption of good faith.
The fact that the exclusionary rule allowed some bad guys to go free was a feature, not a bug: a police officer could get some serious opprobrium (even though it was mostly misdirected at "liberal judges") for failing to do his job properly. I'd love to see some empirical research on the attitudes of police toward illegal search and seizure. Do they even feel constrained anymore? It seems that with all the exceptions and workarounds, an officer who can't conduct a search he wants to conduct just isn't trying hard enough.
Idealist, I think you and I need to work on our client development skills. Comment 3 should read as follows: 'Filing a lawsuit will make you rich beyond belief, smarter, better looking, and a (more) respected member of your community. And it will make the people who messed with you realize what a mistake it was. Don't wait -- call a lawyer today, and sue someone tomorrow.'
Can someone give me an example of what would have been thrown out before that would be allowed now under this ruling?
Speaking of misdemeanors, it's slashed tire liveblogging! 25 cars besides mine? One car on fire? Two tires, same side, slashed? Somebody was a busy little bee last night.
7: the case in question was somebody who was illegly arrested for a misdemeanor traffic violation who they then found drugs on.
What does 'illegally arrested' mean in this context? (I've read some of the commentary, but this is an area where there seem to be a lot of distinctions. Thus, I query.)
10: it means it's against the law to arrest somebody for a misdemeanor traffic violation, I believe.
What does 'illegally arrested' mean in this context?
The offense in question (driving with a suspended license) should, by law, be addressed with a citation and summons. Under Virginia law, the suspect should not have been arrested for that offense. The search was "incidental to the arrest", which is a recognized exception to the requirement for a warrant. The civil libertarians are worried that this could be the exception that swallows the rule, since if you can arrest someone for any minor offense and the results of the subsequent search will not be suppressed, why not just search anyone you want by first arresting them for jaywalking or spitting on the sidewalk.
1 was such a Marshall McLuhan moment for me. I laughed.
Yeah, I think this is one where we need to explain to Mr. & Mrs. America, "The Supreme Court just said that, every time you get pulled over for going 35 in a 25, the cops can arrest and body search you, no matter what the law says."
This is one where "The innocent have nothing to fear" has limited application, because no one wants to be searched, innocent or not. And the law-abiding-Caucasian exception doesn't much apply, because anyone can be presumed to have a bag of weed in the glovebox.
Idealist, I think you and I need to work on our client development skills.
You hourly people will take anything!
The true weeders are the ones who have to do it on contingency.
Yeah, I think this is one where we need to explain to Mr. & Mrs. America, "The Supreme Court just said that, every time you get pulled over for going 35 in a 25, the cops can arrest and body search you, no matter what the law says."
Yes.
Of course, people get pissed off, but nobody does anything about it.
This has been linked before, but www.theagitator.com is an excellent source for outrageous police conduct.
we need to explain to Mr. & Mrs. America, "The Supreme Court just said that, every time you get pulled over for going 35 in a 25, the cops can arrest and body search you, no matter what the law says."
Granted, the SCOTUS decision does leave the door open to the states adopting exclusionary rules of their own, either by statute, or by a judicial interpretation of the state constitution. But really, what state legislature is going to pass a law giving rights to "criminals" in this day and age?
1 was such a Marshall McLuhan moment for me. I laughed.
Same here. From time to time I realize that there are folks who read this blog for something other than the cock jokes. Or maybe not.
Fourth Amendment jurisprudence went seriously off track with the "good faith exception (when was that? 1983 or something?)
Yes, 1984, with US v. Leon. But the exception is (in theory) relatively narrow: it applies to good faith reliance on a faulty warrant (e.g., if the judge who issues it was wrong about probable cause, but the cops trusted it). Plenty of room for abuse still, but it requires collusion between the cops and a judge. At least, I don't think it's (yet) been applied in warrantless search contexts.
Meanwhile in a, uh, shock verdict, the three detectives in the Bell shooting in NYC were acquitted on all charges. The Majesty of the Law, my friends.
it requires collusion between the cops and a judge
Good thing that never happens!
(Sorry; your informative comment didn't deserve a snarky response. It's just that I'm so pessimistic these days about the trajectory of individual rights.)
Good thing that never happens!
Right, that's why I prefaced it with "plenty of room for abuse still". But it is a bit different from just excusing a cop's individual behavior whenever he or she asserts good faith. And as a practical matter, my inexpert sense is that by far the majority of 4th amendment claims arise from warrantless searches, or from searches that exceed the scope of a warrant, not from searches pursuant to a subtly defective warrant, which is the only place (I think--I may be wrong) the good faith exception (so far) applies. I guess my point is that the good faith exception isn't really at the heart of the problem of weak 4th amdt protections. Not suggesting there's no problem.
What does 'illegally arrested' mean in this context? (I've read some of the commentary, but this is an area where there seem to be a lot of distinctions. Thus, I query.)
Confessing that I've read a summary, not the actual decision, my understanding of the rationale is that, while arrest was not permitted under Virginia law, it would have been permitted under the Federal Constitution. Ergo, the search incident to arrest did not violate the federal constitution.
Marty Lederman reads Unfogged? Doesn't he have better ways to spend his time?
Havent you people realized that if they find drugs or guns, then the search was legal? Why do you keep trying to analyze these cases backwards?
Start from the end, work to the front.
You hourly people will take anything if the hourly rate is high enough.
There, fixed that for you.
Havent you people realized that if they find drugs or guns, then the search was legal?
Because you consented, duh. Both the cop and his partner heard you say to go ahead.
You people are destroying my faith in the police corps.
Gonerill is right. Shocking news:
http://news.yahoo.com/s/ap/20080425/ap_on_re_us/police_shooting
Always remember:
If the police fire their weapons, it was justified.
I guess my point is that the good faith exception isn't really at the heart of the problem of weak 4th amdt protections.
That seems right to me. My invocation of US v. Leon was not meant to suggest that the good faith exception is the critical issue, but that this decision represents a turning point in Fourth Amendment jurisprudence. The "fruit of the poison tree" doctrine implied a kind of taboo that has a lot of psychological power: even under the best set of facts, even at the cost of freeing a guilty man, the Constitutional protection would prevail. Ever since then, it seems that the trend has been to carve out more and more exceptions.
IANAL, much less a constitutional expert, but that's my amateur perception.
13 and 17 agreeing get it almost exactly right, but it's not as if seeing Prof. Lederman posting on a blog is such a big surprise in general. It's more that it was the first comment, as if he received some kind of bat signal. For the full "I happen to have Marshall McLuhan right here" moment, you'd want a Fourth Amendment expert who is not known to read blogs to show up, with extra bonus points if they're of a generation not known for their internet use. Wayne LaFave, ideally, or maybe Yale Kamisar.
Because you consented, duh. Both the cop and his partner heard you say to go ahead.
If the police fire their weapons, it was justified.
Some days I remember to be enormously thankful for the privilege of being a harmless looking white guy with a late-model foreign car in an affluent suburb, whose wife brings cookies to the police department at Christmas time.
I took Crim Pro from Wayne LaFave! Not just a brilliant Fourth Amendment scholar, but funny as hell. I laughed out loud at least twice during the final exam.
27, 31: And I really should qualify my cynicism by acknowledging that the existence of bad seeds shouldn't malign the entire profession. I have a friend who is a cop and will excitedly tell war stories the proudly reflect successful police work with meticulous attention to Constitutional limitations. To an extent, I blame the courts more than the law enforcement profession -- sometimes, it's fair to take the cop's word for things; sometimes, the courts' credulity is really quite remarkable.
I laughed out loud at least twice during the final exam.
"He thinks we know the answer to this? Ha!"
Speaking of misdemeanors, it's slashed tire liveblogging! 25 cars besides mine? One car on fire? Two tires, same side, slashed? Somebody was a busy little bee last night
I heard on the police radio that the suspect "had outstanding eyebrows."
I have a friend who is a cop and will excitedly tell war stories the proudly reflect successful police work with meticulous attention to Constitutional limitations. To an extent, I blame the courts more than the law enforcement profession
This gets it exactly right. The vigilant supervision of the courts, far from "tying the hands of the police", contributes to police professionalism. I'd wager that scholars of comparative criminology could plot a straight line correlation between the strength of procedural protections for criminal suspects and the overall level of police professionalism. OJ Simpson would never have been acquitted if the culture of the LAPD been characterized by fear of acquitals from sloppy police work.
Just like in any other industry, weak regulation creates a race to the bottom. Why take the high road if the low road is easier and faster?
I was disappointed when I watched Annie Hall and in the Marshall McLuhan scene, Woody Allen was only fantasizing that Marshall McLuhan would appear and shut the annoying guy up. I thought it would have been funnier if he'd actually been there.
Slashed tire liveblogging continued: thanks, crazy racist tow truck driver. I don't mind that you didn't know where you were going.
23: If you had bothered to show up at UnfoggeDCon II, dear ogged, you could have met Marty live and in person.
Crazy racist tow truck driver seems pretty redundant. I don't know if it's all towing outfits or just Pat's, but they seem to like to hire ex-cons as their drivers and the preferred synonym for "tow" seens to be "rape", as my friends with a small parking lot discovered. Their enthusiasm for towing cars even when they did have the proper lot stickers ("What about this car? Can I rape this one?") wasn't reassuring, either.
What the hell's going on up in Boston anyway?
41: what was weird was that (a) he was only racist towards asians, not blacks (and then in a very strange way: he saw an asian couple taking a picture on a bridge and launched into an extremely dated-sounded bucktoothed pidgin) and (b) he literally seemed to have never been to the city of Boston before, asking me if MIT was BC.
Now time to get to work.
whose wife brings cookies to the police department at Christmas time.
Suckup.
I laughed out loud at least twice during the final exam.
"He thinks we know the answer to this? Ha!"
I had a structural exam in college that included sizing a beam in the following materials:
steel
wood
glass
I don't recall whether I laughed out loud, but I did leave early (I had already calculated that it would have little to no effect on my course grade).
Suckup.
Say what you will, but the "My wife gave cookies to the police daprtment: 2008" bumper sticker has protected me from moving violations.
"Laughed out loud" in the sense that the exam included essay questions based on Cheers, Seinfeld, and I think the OJ trial.
"Laughed to conceal my deep sorrow before I walked out early and accepted defeat" was the Property exam.
46: I take it that's like a license plate, where you just get a little sticker to update it each year.
An ex of mine was the daughter of a Chicago policeman, and she and the other cop kids used to keep a beaten and weathered CPD hat in their rear window, behind the backseat headrests and only slightly visible from outside the car. It did wonders, apparently.
the exam included essay questions based on Cheers, Seinfeld, and I think the OJ trial.
That raises an interesting question: is it easier or more difficult to answer the questions if you don't watch television and aren't familiar with Cheers or Seinfeld. Does knowledge of the characters and their history illuminate the issues at hand, or distract from them? (This is not entirely hypothetical in my case, since I have never seen an episode of Seinfeld.)
I have never seen an episode of Seinfeld
I never would have guessed that Knecht is black. I should have paid more attention to that whole "black peter" thing the other day.
I never would have guessed that Knecht is black.
Shhhh! If my mortgage lender finds out, I'll be in technical default on the loan covenant!
I don't find this decision controversial or all that problematic, for the reasons cited by Di in 22. I think this, from the opinion, is important:
Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. . . . Moore argued, however, that suppression was required by the Fourth Amendment.
For the Defendant's theory to be correct in these circumstances, the protection provided by the 4th Amendment would vary from State to State and be dependant on the particulars of State law.
Well, yes, sort of. But that's true in other contexts, such as due process, where, e.g., whether a property right in some benefit is vested or not will often depend on state law. The idea there is that once the state makes a certain commitment to its citizens in its laws, it can't just arbitrarily back off from that commitment. I can't see why a similar idea couldn't apply here, but then I haven't made it all the way through the opinions yet.
Grumps - if you look at the links in comment 1 - particularly the Volokh one - you'll see that Moore's argument has a rock-solid basis in the last ~50 years of 4th Amendment jurisprudence. State laws don't generally trump 4th Amendment requirements for suppression. I still don't entirely understand the Court's basis for viewing this case as different, but they left the general principle standing; they clearly were carving out from the suppression requirement, not voiding it in all cases.
For the Defendant's theory to be correct in these circumstances, the protection provided by the 4th Amendment would vary from State to State and be dependant on the particulars of State law.
It's not just the defendant's theory; 4th Amendment protections necessarily vary from state to state because statutes vary from state to state. For instance, for a long time, Montana had no speed limit on interstate highways; therefore, pulling over a driver for speeding* would be plainly illegal even under today's ruling, whereas it would be fine in every other state.
BTW, it's a pretty dubious argument that the Court was protecting the uniformity of 4th Amendment protections by eviscerating them. The damage done to my rights by voiding them in a huge number of instances is far graver than any perceived damage done if the particulars of 4th Amendment protections vary according to the particulars of state law.
* I know they had a "reckless driving" clause they could invoke; that's not relevant to the example
53
"... The idea there is that once the state makes a certain commitment to its citizens in its laws, it can't just arbitrarily back off from that commitment. I can't see why a similar idea couldn't apply here, but then I haven't made it all the way through the opinions yet."
From Ginsberg's concurrence:
"The Fourth Amendment, today's decision holds, does not put States to an all-or-nothing choice in this regard. A State may accord protection against arrest beyond what the Fourth Amendment requires, yet restrict the remedies available when police deny to persons they apprehend the extra protection state law orders. ..."
The idea there is that once the state makes a certain commitment to its citizens in its laws, it can't just arbitrarily back off from that commitment.
I think this is generally persuasive, but the commitment that Virginia made to its citizens when it made driving under suspension a non-arrestable offense didn't include supression of evidence. Instead, the incentives it built into the commitment included the ability to sue the officer in civil court.
State laws don't generally trump 4th Amendment requirements for suppression.
And they didn't in this case. Virginia could have made driving under suspension an arrestable offense, despite classifying it as a misdemeanor. It is in most states, and doing so wouldn't have violated the 4th Amendment. I think this portion of the opinion makes sense:
Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks
them in only that subset of minor-misdemeanor arrests in which there is the least to be gained--that is, where the State has already acted to constrain officers' discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress.
BTW, it's a pretty dubious argument that the Court was protecting the uniformity of 4th Amendment protections by eviscerating them.
This begs the question. Virginia chose to provide its citizens greater protection than the 4th Amendment affords by making driving under suspension a non-arrestable offense. It chose to guarantee this protection by providing for civil liability. If the Supreme Court were to strike down this enhanced scheme of protection it would provide incentives for States to make every misdemeanor an arrestable offense and give officers greater discretion than they currently have.
but the commitment that Virginia made to its citizens when it made driving under suspension a non-arrestable offense didn't include supression of evidence
Right, it didn't explicitly include that commitment, but it would I think be consistent to regard exclusion of evidence obtained by a search incident to an unauthorized arrest as entailed by the commitments it did make. Just as how a state need not explicitly commit to provide due process for deprivation of vested property rights; once it vests the rights, due process is entailed.
That said, now that I've finished the opinions, this sucks as policy but strikes me as pretty sound doctrinally. It is hard to see this as evisceration, given that the opposite ruling would not really have changed what states could do, only how they could do it.
The real problem here is probable cause doctrine, which is out of hand, especially since Atwater a few years back. (Thanks again, Souter!) The notion that probably cause that any law, however minor, is being broken renders an arrest constitutionally sound is just nuts. Also search incident to arrest is crazy broad (though admittedly a tough problem).
Probable cause is especially screwy in cases involving drugs and K-9 units, where dog sniffs around the outside of a car aren't considered a "search," turning every traffic ticket into a potential drug bust. Basically, Dog alert = probable cause to search the vehicle. Any suspicion by the cops can justify temporary detention until the dog arrives, and often someone with drugs will consent to the search instead of waiting for the dog because dogs' noses are much better than cops' eyes.
Where I practice the police have extended the use of this tactic to apartments where they suspect drug dealing. Basically, the police get an "anonymous tip" of drug activity, they take the dog to the front door of the apartment, get a warrant based on the dog's alert, and have grounds to search the apartment. I filed a motion to surpress under this fact pattern, but my client was offered too good of a deal to pass up (probably because they want to keep this search option alive as long as possible).
54 -- Montana had a speed limit. It just wasn't a number. And then the MSC through it out as void for vagueness, so now they have numbers.
Couldn't all laws be changed to "reasonable and proper"? Wouldn't that make law school much easier, and the legal code much more concise? And people would also stop acting unreasonably and improperly.
Wouldn't that make law school much easier, and the legal code much more concise?
And lawyers much richer.
An academic lawyer told me that it's generally agreed among the profession in all common law countries that the concept of "the reasonable person" is the bane of all statute law.
"Your honor, my client contends that under these circumstances, shooting his wife was reasonable and proper."
You'd still have to learn the important stuff:
Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.
And of course this:
The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.
The words above will ring for all the lawyers reading. For you other folks, the quote in 64 is from Hadley v. Baxendale, and the one in 65 is from Palsgraf v. Long Island Railroad Co.
No quotes from the hairy hand case?