Category Archives: searches

Murray v. United States

487 U. S. 533

June 27, 1988

Police entered a warehouse without a warrant and saw several suspicious looking bales in plain view. Not mentioning any of this in their request, these officers got a warrant, and seized the bales, which contained marijuana. An earlier case called Segura allowed for evidence seized with a warrant to stand, even if the police had earlier made an illegal entry, provided that the warrant was not based on any evidence gained from the previous entry. The question was whether the Segura doctrine applied in this case, where apparent evidence had been in plain view.

The Court ruled 4-3 that such evidence need not be suppressed (Brennan and Kennedy did not participate). As long as the warrant was in no way based on evidence from the previous entry, it made no difference whether the evidence ultimately seized had been previously visible or not. He found support for the conclusion in the inevitable discovery doctrine, which allowed for even illegally seized evidence to come in if it would have inevitably been found by legal means. Scalia did not think this rule would encourage bad police behavior, but did remand to determine whether the policemen would have applied for a warrant without seeing the bales.

Marshall, joined by Stevens and O’Connor, dissented. He thought it almost certain that the police only applied for a warrant because they saw the bales. He thought this extension of the Segura rule would positively encourage bad conduct by the police. Just do an illegal search, and don’t bother getting a warrant unless you see evidence of wrongdoing. The potential for abuse was simply too high, and greater deterrence was needed. Stevens, in his own dissent, registered his continuing belief that Segura itself was wrongly decided and should be overruled.

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Michigan v. Chesternut

486 U. S. 567

June 13, 1988

One day in Detroit, a drug dealer saw a police car, and broke into a sprint. The police car followed him, and during the chase, the crook dropped drug packets. After his arrest, he claimed that the chase was an unlawful seizure of his person, because the police had no basis for suspecting criminal activity apart from his sprinting. The police responded that the bare act of following someone in a police car is not a Fourth Amendment seizure.

The Supreme Court unanimously agreed with the police. Blackmun stated that the test for seizure is whether a reasonable person would feel they were free to leave. In the case at hand, the police issued no order to halt, did not turn on the car siren, and did not use the car to block the runner. Thus, Blackmun concluded that a seizure had not quite been committed, for a reasonable person could conclude that they were merely being monitored rather than completely stopped.

In a concurrence joined by Scalia, Kennedy noted that the Court had not decided if clear communication of an impending, but not yet effected seizure violated the Fourth Amendment. Shockingly, Brennan and Marshall did not dissent from the Court’s holding. I guess there has to be some limit to their pro-criminal obsession, but it’s always a shock to catch a glimpse of that limit.

California v. Greenwood

486 U. S. 35

May 16, 1988

Greenwood was arrested on drug charges after police found evidence in the garbage bags he left at the curb. Although California law prohibited police from searching garbage without a warrant, state law also said there was no exclusionary rule for illegally obtained evidence. As a last resort, Greenwood argued that the evidence obtained from warrantless garbage search should be excluded based on the US Constitution.

But the Court ruled 6-2 that searching trash left at curbside did not require a warrant (Kennedy did not participate). Justice White said that there was no reasonable expectation of privacy for garbage bags because anyone – an animal, a snoop, to say nothing of garbage collectors themselves – could easily rummage through the trash and take something. Furthermore, loads of lower courts had already ruled that no warrant was needed to search garbage. White also smacked down two Hail Mary arguments as obviously incorrect – first, that the US Constitution should ban warrantless trash searches if a state’s law does, and second, that it was unconstitutional for California to have no exclusionary rule for state law violations.

Brennan threw a huge hissy fit in dissent, and was joined by Marshall. He said that virtually any other closed container is afforded an expectation of privacy, and that garbage bags should not be treated differently. Even if garbage bags can easily be opened by third parties, Brennan said, that’s still an insulting invasion of your privacy. Honestly, Brennan could have potentially convinced me, but his apocalyptic tone makes it hard to take him seriously. In the end, I do think warrantless searches of curbside garbage are probably a good thing.

Griffin v. Wisconsin

483 U. S. 868

June 26, 1987

Joseph Griffin, a Wisconsin resident on probation, had his home searched, and a gun was discovered. The search was pursuant to a state law which gave police the right to search the houses of probationers without warrant upon reasonable grounds for suspicion. Griffin charged that this violated the Fourth Amendment, as neither a warrant nor probable cause were required.

The Court ruled 5-4 that the search was valid. Scalia said that it was a ‘special needs’ search justified by the unique nature of probation. In probation, close supervision is essential, and probation officers have official custody of men like Griffin, just as parents have custody of children. The Wisconsin statute was held to be a valid means for the state to curtail the rights of probationers, and the notions of requiring probable cause and/or a warrant for a search were held to be unduly burdensome on the probationary landscape.

Blackmun wrote a dissent joined by Brennan and Marshall. He started out by conceding that a search might be permissible with less than probable cause (Brennan did not join this part). Nonetheless, the special needs doctrine had never been held to extend inside actual homes, as opposed to schools or offices. Furthermore, Blackmun did not believe getting a warrant would be all that burdensome for probation officers. Finally, in a section also joined by Stevens, he argued that the ‘reasonable grounds’ standard of suspicion in the statute was vague and utterly toothless, and pointed out that even the statute’s minimal procedures had not been entirely followed in Griffin’s case.

Stevens, joined by Marshall, filed a infantile dissent stating only that he “simply [did] not understand how five Members of this Court” could rule against Griffin. With those childish words, October Term, 1986 finally came to a merciful end. And then came the great shock: Powell announced his retirement. The term had closed on a high note: Rehnquist, White, O’Connor and Scalia won all five cases announced on the last day. As Powell was the weakest link in the conservative chain, hopes were high that his replacement could create a solid right wing majority for years to come.

Anderson v. Creighton

483 U. S. 635

June 25, 1987

Officer Anderson made a warrantless search of the Creighton house in pursuit of a bank robber, but the search was fruitless. The Creighton family wanted to sue Anderson for violation of the Fourth Amendment, but Anderson claimed he had immunity from lawsuits under the Harlow principle, which barred suits when the legality or illegality of an action wasn’t firmly established.

The Court ruled 6-3 that Anderson could claim immunity. Scalia first rehearsed the government’s interest in not being bogged down by time-consuming suits against it. He then said that federal officers could obtain immunity as a matter of law when they could have reasonably believed that the search was valid. Scalia was not moved by the linguistic argument that “unreasonable searches and seizures,” to quote the Fourth Amendment, could never be considered “reasonable” for immunity purposes. Neither did he have much use for some arguments from British Common Law, observing that American Common Law had simply gone in a different direction. Thus, on remand, Anderson was free to argue that exigent circumstances were sufficient to create a reasonable belief of the warantless search’s validity.

The Stevens dissent, joined by Brennan and Marshall, began by positing that the Harlow immunity applies only when legal standards and doctrines are themselves undefined. In this case, the question was only whether Anderson had complied with well-established legal standards. The Harlow doctrine was meant to shield high level government officials in uncharted water; it was not meant to give policemen broad immunity when they violated the Fourth Amendment. Stevens felt that there should not be two different standards for search reasonability – the Constitutional one, and the looser immunity one. He closed by stressing the importance of protecting the privacy rights of ordinary Americans.

What swayed me most was Footnote 21 in the dissent, which described the search. If its description is true, Officer Anderson acted atrociously, and deserves every punishment he can get. But more than than, I really I hate governmental immunities that are not available to everyday citizens. No ordinary criminal defendant can argue that he was reasonably mistaken about the law. Why are they held to a higher standard of legal acumen than policemen? No one should be above the law, least of all government officials.

California v. Rooney

483 U. S. 307

June 23, 1987

Suspecting Rooney of illegal gambling, cops searched in his apartment complex’s communal dumpster. Evidence found in the garbage formed part of the basis for a search warrant. Rooney claimed that the garbage search violated the Fourth Amendment. A California court held that the garbage investigation was invalid, but that the police had enough independent evidence to constitute probable cause for the search warrant regardless. The prosecutors appealed, attempting to get the ruling on the garbage evidence overturned.

In a per curiam opinion, the Court held 6-3 that certiorari was improvidently granted. Because the search warrant was still valid, the garbage issue was essentially moot. California’s argued that they might desire to introduce the garbage evidence at Rooney’s trial, but the Court deemed this state interest too remote to merit a judicial decision on the Fourth Amendment issue. Marshall did not join the opinion, but silently concurred in judgment.

White dissented from the Court’s refusal to decide, and was joined by Rehnquist and Powell. He pointed out that the garbage question was the main focal point in the lower court rulings, and was thus enough of a separate issue from the search warrant’s validity that higher judicial review was appropriate. Turning to the merits, White opined that Rooney retained no privacy expectation for whatever he placed in the garbage bin. Since animals or scavengers can freely prowl through garbage, policemen can too. He accordingly thought there was no Fourth Amendment violation.

Well, this is another one of those asinine justiciability cases. The Court really needs to give up the charade, and just start issuing advisory opinions. The sky will not fall – lots of US states and foreign nations do it. And more to the point, advisory opinions are what the Court effectively does anyway. With thousands of cases before them, they select a few dozen involving the doctrinal issues they want to answer. One year later, the Court found another case out of California involving the garbage issue, and reached the merits at last. But there was no good reason for abstaining in 1987. All it did was waste everyone’s time and everyone’s money.

New York v. Burger

482 U. S. 691

June 19, 1987

A New York law allowed policemen to show up unannounced at auto junkyards and search around for stolen property, all without a warrant. Several stolen cars were found in Burger’s junkyard, and he moved to suppress the evidence on the grounds that the search was unconstitutional. New York characterized the search as administrative rather than criminal, and in line with other routine searches of closely regulated industries. Burger thought the searches were nothing but clever ways to get around the warrant requirement.

The Court ruled 6-3 that New York’s search scheme was Constitutional. Blackmun said in his majority opinion that junkyards were extensively regulated by the states, and that the businesses thus had a low expectation of privacy. Given how epidemic auto theft had become, Blackmun also thought that the law served an important need, and did so in an appropriate fashion. Furthermore, the law was narrow enough as to not constitute a blank check. Finally, he turned to the claim that the law was a criminal search authorization in disguise. Blackmun opined that the act had a legitimate administrative purpose: insuring that auto junkyards were not covert dumping grounds for stolen property. That this administrative purpose overlapped with a penal purpose did not matter.

Brennan, joined by Marshall and O’Connor, dissented. He showed that junkyards were not really that widely regulated. If “closely regulated” industries included junkyards, Brennan thought, then practically no commercial enterprise had much privacy protection at all. He further found the statute’s search authorization almost limitless; police could search a junkyard as thoroughly and as often as they wanted, without any need for justification. Finally, in a section not joined by O’Connor, Brennan showed the essentially criminal nature of the searches. He cited precedents standing for the proposition that administrative searches were not to be used to discover criminal misconduct. In Burger’s own case, the police had gone far beyond what was necessary for the administrative scheme, thus proving Brennan’s point.

Every once in a while, a case comes along where the Brennan and Marshall team totally gets it right. I would have unreservedly joined the entire dissent. The majority opinion practically eviscerates the Fourth Amendment with respect to businesses. Addressing car theft is an important interest, but the provisions of the Constitution must be given more than lipservice.

O’Connor v. Ortega

480 U. S. 709

March 31, 1987

At a state run hospital, Dr. Magno Ortega was suspected of a broad array of work misconduct. While he was placed on administrative leave, hospital officials searched his office and filing cabinets, and seized several personal documents from them. When Ortega learned of this, he filed a section 1983 claim, arguing that his Fourth Amendment right to privacy had been violated.

The Court ruled 5-4 that the actions taken by the hospital were not per se unconstitutional. Appropriately, Justice O’Connor wrote for the Court. Because of the communal environment of a workplace, she held that Ortega’s office was not a place with a reasonable expectation of privacy, but she did admit that his filing cabinets had such a reasonable expectation. Despite this privacy interest, O’Connor argued that employers could still search the cabinets without a warrant or probable cause if there was some reasonable suspicion, and if the search was done for inventory purposes or misconduct prevention purposes. Relying on the New Jersey v. T.L.O. decision, she claimed that due to the ‘special needs’ of the workplace, it would be unreasonable to require employers to follow police-like procedures. Because the scope and purpose of the investigation was disputed though, she remanded the case for further findings of fact.

Scalia concurred only in judgment, making O’Connor’s opinion only a plurality opinion. Scalia thought that Ortega’s office had a reasonable expectation of privacy, and that the plurality’s standard of reasonableness was somewhat ill-defined, but agreed that the search did not sound per se unreasonable, and concurred in the remand. Blackmun wrote a dissent, which was joined by Brennan, Marshall, and Stevens. After gracelessly accusing the majority of bias against state employees, he contended that the search was almost indistinguishable from the sort of search the police would do, and found that such warrantless investigative searches were beyond the pale. He also claimed that the majority undervalued workplace privacy interests, and overvalued the difficulties of employers complying with strict Fourth Amendment procedure.

As I see it, when you work for an employer, you do give up your privacy rights at the place of employment. This case only went to the Supreme Court because the hospital just happened to be state run. In my opinion, that really shouldn’t be so overwhelmingly Constitutionally significant. When it comes to Fourth Amendment rights, I don’t think a state run place of employment should be subjected to a higher standard than a private place of employment. Thus, I would say that the search of Ortega’s cabinets was properly within the powers of the hospital authorities.

Illinois v. Krull

480 U. S. 340

March 9, 1987

Ask, and ye shall receive! After complaining in the last two posts about the exclusionary rule, the Court makes a decision limiting its reach! Illinois had a law allowing the police to regularly inspect the records of auto yards without a warrant. One day in 1981, police found stolen cars at a junkyard while conducting such an inspection. The very next day, in a totally separate suit, the Illinois law was declared unconstitutional by a federal court. On the basis of that decision, Krull tried to get the junkyard evidence suppressed. The police argued that when the search actually occurred, they were relying on a statute which they had no way of knowing was unconstitutional.

In a 5-4 ruling, the Court held that evidence need not be excluded if officers were relying in good faith on a law that was only later declared unconstitutional. Justice Blackmun wrote the majority opinion, and analogized the issue to that in United States v. Leon, where the Court held that the exclusionary rule would not apply if a judge accidentally issued a warrant without probable cause. The purpose of the exclusionary rule, Blackmun said, is to deter police misconduct, and penalizing officers for relying upon good law does not contribute to that end. He also said that Courts should trust legislators to not pass unconstitutional laws. The only exception would be if a law a policeman relied upon was blatantly unconstitutional on its face.

O’Connor dissented, and was joined by Brennan, Marshall, and Stevens. Unlike Blackmun, she did not feel the trust giving to judges in Leon should also be given to legislators, citing the distrust the American colonists had of the British Parliament. She also worried that it would be difficult for judges to determine what laws could be considered blatantly unconstitutional, and thus not entitled to police reliance. The law at issue here provided a good example, she argued, since its Constitutionality was still unsettled six years later. Finally, O’Connor thought the majority opinion seemed inconsistent with Griffith. Marshall concurred in her dissent, with the statement that she had discussed a couple of precedents unnecessarily.

Contra O’Connor, I think the unsettled Constitutionality of the Illinois law is, if anything, a good argument that the exclusionary rule shouldn’t apply. Why in the world should evidence be excluded if the law might ultimately turn out to be Constitutional? Even though Krull was a good decision, I’m going to say it again: the exclusionary rule sucks. The truly guilty should be found guilty, and a nation should not prioritize rules and procedures over substantive justice. I also don’t like Krull’s tacit implication that police should be trusted less than legislators, a notion which is both elitist and probably untrue.

Finally, while I have no empirical evidence to back this up, I do have a strong supposition that the exclusionary rule has paradoxically resulted in far too much police power. Over the last several decades, I’m willing to bet that there are many pro-police Supreme Court rulings which would have gone the other way but for the harsh remedy of the exclusionary rule. The upshot is that police are now allowed to use all sorts of dubious methods and practices that the Supreme Court probably would have prohibited had the exclusionary rule not existed.

Arizona v. Hicks

480 U. S. 321

March 3, 1987

Police entered an apartment after a bullet was shot through its floor into the apartment below. During the search of the apartment for guns, an officer saw some stereo equipment that appeared to be stolen. He moved one piece slightly in order to read the serial number – and it turned out that the equipment was indeed stolen. Hicks moved to suppress the stereo evidence on the grounds that it had been searched without probable cause.

Scalia wrote for a 6-3 majority which agreed that the evidence must be suppressed. He first made clear that touching and moving objects constituted a “search” for Fourth Amendment purposes. Previous cases suggested that potential evidence of a crime separate from the one being investigated could be searched if it was in plain view. Whether probable cause was necessary to search objects in plain view  was an open question, and Scalia answered in the affirmative, desiring a bright line rule and a means of curbing excessive police snooping. Arizona had (rather stupidly) conceded that it lacked probable cause, and so Scalia held the search unconstitutional. White offered a brief concurrence, which stated that evidence searched under the plain view rule need not be discovered inadvertently.

Powell and O’Connor filed dissents, both of which were joined by the other and by Chief Justice Rehnquist. Powell found the majority opinion’s definition of a search to be impractical and myopic. “Under the Court’s decision, if one watch is lying face up and the other lying face down, reading the serial number on one of the watches would not be a search.” O’Connor felt that touching the stereo was less a “search” than a “cursory examination,” and that the balancing of interests served by the Fourth Amendment should weigh against suppression. She also felt that the Court could simply hold that probable cause existed, even if Arizona said it did not.

I will admit that in my lifetime I have sometimes ridiculed O’Connor for her distaste of bright lines, but this is one of those cases that shows the wisdom of that propensity. Scalia’s rigid formalism just seems wrong given the facts of the case. Also, can I mention again how much I hate the exclusionary rule? It boggles the mind that the Court cares less about an owner getting back his stolen property than it does about a police officer touching an object for a few seconds. “It is not good to show partiality to the guilty by perverting the justice due to the innocent” – Proverbs 18:5