SEARCH AND SEIZURE (Update 2)

The most important development in contemporary search and seizure law has been a fundamental change in the jurisprudential theories used to interpret this area of constitutional law. For most of the twentieth century, rules adopted during the "formalist" Lochner era dominated search and seizure theory. During the past three decades, however, these formalist ideas have gradually been supplanted by pragmatist theories that are consistent with views about the nature of law and its uses now widely held in our legal culture. This change in theory has had profound practical consequences. It has altered the definition of individual privacy, property, and liberty rights, has expanded the scope of government power, and has tended to shift power from the judicial branch to the executive branch of government. To understand the significance of this recent transformation, it is necessary to examine the theories that governed search and seizure law for most of the century.

At the turn of the twentieth century, the Supreme Court frequently employed formalist theories to define the constitutional limitations upon searches and seizures. The first of these opinions, boyd v. united states (1886) is the classic example of fourth amendment formalism. The Boyd Court ruled that the enforcement of a subpoena ordering the production of private business records violated the Fourth and Fifth Amendments separately, and also adopted an expansive, structural theory in which the two amendments were linked by principles of privacy, property, and liberty. The two amendments ran together to create a zone of privacy into which the government could not intrude to compel production of some forms of private property for use against citizens in criminal or quasicriminal proceedings. These were indefeasible rights strong enough to defeat the government's policy arguments that subpoenas should be permitted because they were valuable tools for achieving important social interests, like effective law enforcement and the collection of import duties.

The Boyd opinion utilized the formalist legal theories dominant at that time. It identified natural rights embodied in the Constitution and the common law, then deduced rules governing searches and seizures from those foundational principles. It treated property rights as fundamental rights and defined some as essential attributes of liberty, striking down a statute authorizing the government to invade the realm of private rights, including rights based on property law.

A Fourth Amendment exclusionary rule was implicit in Boyd, which held that the government could only seize items in which it had an interest recognized under property law. In weeks v. united states (1914), the Court deployed this same formalist reasoning to justify the adoption of an explicit exclusionary rule. The Court held that private papers seized in a warrantless search of Weeks's home could not be used to convict him of a crime because the government had failed to satisfy the procedural requirements set out in the warrant clause, and had violated the substantive restrictions that limited the government's power to seize private property. As it had in Boyd, the Court held that the seizure of private papers was unconstitutional.

At the beginning of the 1920s, the Court calcified its property-based theories by adopting the mere evidence rule, in which it reiterated its earlier decisions holding that the government could seize property only if it could demonstrate some legally cognizable property interest in the items. In Gouled v. United States (1921), overruled by warden v. hayden (1967), the Court decreed that even a valid search warrant could not justify the search of a home or office unless the government or some private citizen had a recognized property interest in the item sought. Government actors could seize stolen or forfeited property, property concealed to avoid payment of duties, required records, counterfeit currency, and various criminal instrumentalities. Property was not seizable, however, if the government merely wanted to use it as evidence. The mere evidence rule survived for almost half a century despite its two fundamental defects. It obliterated the distinction between papers—property that can contain the expression of thoughts, ideas, and emotions—and all other forms of property, and it imposed excessive restrictions upon law enforcers.

Boyd 's interpretive linkage of the Fourth Amendment with the Fifth Amendment privilege against self-incrimination suggested that papers could be treated differently from other tangible personal property. Papers, after all, possess inherent testimonial attributes. Most property does not. Gouled rejected this distinction, declaring that for Fourth Amendment purposes papers possess "no special sanctity" when compared to other forms of property. This conclusion confirmed the power of government agents to seize private papers that could be classified as contraband or criminal instrumentalities. On the other hand, the rule imposed unjustifiable constraints on law enforcers by prohibiting the search for and seizure of any property, regardless of its probative value, which the government wanted for use solely as evidence.

In other opinions issued during the 1920s, including Marron v. United States (1927), the Court reaffirmed that even if the government could establish a property interest in the property it had seized, compliance with the requirements of the warrant clause was the procedural prerequisite of a constitutional search or seizure. Even when the Court upheld warrantless searches and seizures, it still required that the government possess probable cause. For example, the warrantless search of an automobile traveling on an open highway for illegal liquor was permitted if the officers possessed probable cause, because the vehicle's inherent mobility created an exigency: the criminals might escape along with their contraband, carroll v. united states (1925).

In olmstead v. united states (1928), overruled by katz v. united states (1967), the Court employed a restrictive version of property-based formalism. The majority paid lip service to the linkage between private property and constitutional rights established in Boyd, Weeks, and Gouled, but abandoned the expansive vision of individual liberty that energized those earlier decisions. Although it was not the only opinion in which the Court employed formalist theories to uphold government searches and seizures, Olmstead sounded the deathknell for a critical part of the formalist construct—the integration of property law with an expansive interpretation of constitutional provisions designed to protect individual liberty. The Court held that the Fourth Amendment only regulated physical trespasses into constitutionally protected places, like homes and offices, and searches and seizures of people and tangible physical property. This property-based literalism led the Court to conclude that the installation and use of wiretaps on telephone poles did not constitute a search because there was no physical trespass into constitutionally protected areas, and no seizure occurred, because conversations were not tangible property protected by the Fourth Amendment.

During the forty years following Olmstead, Lochner -era theories continued to dominate the debate about the constitutional limitations upon searches and seizures. But in recent decades the Supreme Court has abandoned Fourth Amendment formalism. The emergence of pragmatist ideas in Fourth Amendment theory parallels changes in the broader legal culture. Pragmatism emerged as a coherent philosophy during the Lochner era, and it provided the theoretical foundations for the attack on legal formalism waged by scholars, judges, and lawyers during the early decades of the twentieth century. The pragmatist attack on legal formalism initially was energized by broader progressive social, political, economic, and intellectual movements.

The contemporary version of Fourth Amendment pragmatism rejects the formalist conception of strong individual rights, its linkage of liberty, privacy, and property rights, its value-based theory of constitutional interpretation, and its emphasis upon formal reasoning. In their place the Justices have substituted pragmatist theories that do not treat privacy, liberty, and property as indefeasible rights, but rather as interests to be considered along with an expansive array of factors potentially relevant to deciding each case. Judges do not act as neutral interpreters of preexisting legal principles and rules, but instead act as social engineers utilizing various tools, including the social sciences, to help advance society's present goals. As a result, judicial analysis typically relies upon nonformal reasoning that emphasizes social goals and policies as reasons for decision, and that applies legal rules only to advance those purposes. Rules need not be followed if they conflict with "better" social policies.

The Court's reasoning in United States v. Leon (1984) exemplifies how pragmatist methods diminish the power of rules. The Fourth Amendment's most definite rule is that "no warrants shall issue, but upon probable cause." In Leon, searches and seizures that produced incriminating evidence were conducted pursuant to a warrant that had been issued despite the absence of probable cause. The exclusionary rule supplies the standard remedy for such unconstitutional searches and seizures. Had the Court's majority engaged in rule-based decisionmaking, it likely would have concluded that although the suppression of evidence produces unfortunate social costs, they are an unavoidable byproduct of judicial application of relevant legal rules.

Instead, the Court based its decision upon pragmatist reasoning. It examined a variety of nonlegal sources of information relevant to the dispute, including statistical analyses of the impact of the exclusionary rule on the prosecution and conviction of suspected criminals. The Court concluded that on the case's facts, the costs to society of suppressing evidence probative of the defendant's guilt outweighed any countervailing benefits. Rather than accept a suboptimal outcome dictated by application of the amendment's text and the exclusionary rule, the majority established a "good faith" exception to the exclusionary rule designed to achieve a socially desirable outcome.

Although pragmatist reasoning has come to dominate search and seizure law under the "conservative" burger and rehnquist courts, the "liberal" warren court introduced the most important of these methods to Fourth Amendment theory. Cases in which judges engage in interest balancing exemplify this transformation.

The emergence of interest balancing as a central method for resolving Fourth Amendment disputes can be traced to a series of opinions issued by the Warren Court in the years 1966 to 1968. In the first, schmerber v. california (1966), the Court approved a blood test used as evidence supporting criminal charges of driving under the influence of alcohol. This intrusion into Schmerber's body was a warrantless search, but it did not violate the Fourth Amendment. The majority emphasized that the police possessed probable cause; that obtaining a warrant was impracticable because the inevitable diminishing of Schmerber's blood alcohol level as time passed created an exigency; and that the physical intrusion was relatively minor. The opinion employed an analytical process the Court later would label the " Schmerber balancing test," and concluded that the means used to obtain the blood sample satisfied the Fourth Amendment's standard of reasonableness.

The next significant Fourth Amendment balancing decision came a year later in camara v. municipal court (1967), which involved a resident's challenge to an ordinance that permitted housing inspectors to examine the interior of his home. The Court concluded that these inspections were searches, but authorized the issuance of warrants on the basis of information insufficient to provide probable cause to believe that any particular dwelling violated health and safety regulations. This weakening of the probable cause standard was coupled with an explicit turn to balancing. Although ostensibly adhering to the commands of the warrant clause, the Court stressed that "our holding emphasizes the controlling standard of reasonableness." The Court then made a critical assertion that ignored existing precedents and laid the foundation for future balancing: "there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails."

The theoretical innovations adopted in Camara have provided the authority for many of the Court's subsequent opinions. None is more important than terry v. ohio (1968), where the Court for the first time directly applied the Fourth Amendment to a common police activity, the " stop and frisk " of a person whom the police suspect of criminal activity, but lack probable cause to arrest. Chief Justice earl warren's opinion established for the first time that probable cause was not required to justify all searches and seizures.

The Court held that "stops and frisks" constituted an intermediate category of searches and seizures lying somewhere between consensual encounters ungoverned by the Fourth Amendment and intrusions amounting to arrests and full-blown searches. Because they were less intrusive than full-blown arrests and searches, the Court decided that stops and frisks could be justified by a degree of knowledge or certainty less than that required for greater intrusions. The opinion established an intermediate category of knowledge, labeled "reasonable suspicion," which was sufficient to justify these searches and seizures.

The reasonable suspicion standard requires that to justify "the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." This definition describes a quantum of information less than probable cause and more than a mere hunch, but it also incorporates a balancing methodology. The Court not only examined the nature and quality of the information possessed by the police—as it would in deciding whether probable cause existed—but also balanced the quality of that information against the nature and extent of the government intrusion upon privacy and liberty interests. Citing Camara as its only authority, the Court reasserted the debatable principle that balancing supplied the only "ready test" for measuring the reasonableness of the intrusion. When it balanced, the Court found that the search and seizure of Terry was reasonable because the government's interest in effective crime detection and in protecting the safety of the public and the investigating officer outweighed the individual's interest in "personal security."

Since 1980 the Supreme Court has employed both Terry 's three-tiered model of police–citizen encounters and interest balancing to determine whether a wide variety of government activities are reasonable within the meaning of the Fourth Amendment. Even a small sample of these decisions reveals the impact of balancing on search and seizure law. In cases involving investigations of suspected drug trafficking and other criminal behavior, the Court has upheld investigative detentions of travelers in airports, the seizure of air travelers' luggage, and the detention of automobile travelers. In other cases employing balancing methods, the Court has approved limited suspicionless seizures of all motorists at sobriety checkpoints, approved suspicionless drug tests of high school athletes and adult employees, and applied a "balancing test" to determine whether suspects in criminal cases can be forced to submit to surgery that may reveal evidence of their guilt.

The cumulative weight of these decisions has led the Court to a startling rejection of the rule-based model that once dominated Fourth Amendment theory. The warrant rule no longer is the central conceptual tool for determining whether government conduct is reasonable for Fourth Amendment purposes, but is now the exception, limited to some criminal investigations. Nonformal interest balancing has replaced the warrant model as the basic method for determining whether searches and seizures are unreasonable.

The implementation of nonformal decisionmaking has been facilitated by a related change in how the Court interprets the relationship between the Fourth Amendment's two clauses. For most of the twentieth century, the Supreme Court used a "conjunctive" theory of the amendment that referred to the specific requirements set forth in the amendment's warrant clause to define what conduct constituted the "unreasonable searches and seizures" prohibited by its opening clause. Until recently, the Court attempted to enforce the basic principle that searches and seizures were unreasonable unless conducted pursuant either to a valid warrant or one of a few "jealously and care-fully drawn" judicially created exceptions to the warrant requirement. Whether authorized by a warrant or an exception, most searches and seizures had to be justified by the probable cause standard articulated in the warrant clause.

This warrant-based model tended to allocate power to the judicial branch by requiring prior judicial approval of searches and seizures. Even in the majority of cases, where searches and seizures are conducted without warrants, the requirements of probable cause and a warrant or exception provided objective tests against which judges could measure the police conduct in subsequent proceedings. As a result, the conjunctive theory augmented judicial authority to review police conduct.

For decades this conjunctive interpretive model served as a central part of Fourth Amendment theory. In the past decade it has been replaced by a "disjunctive" theory that treats the warrant requirement as nothing more than an example of balancing relevant to some—but not all—criminal cases. The rules found in the warrant clause—including the requirement of probable cause—are no longer benchmarks against which the constitutionality of all searches and seizures are judged. Instead, decision-makers must decide only if government satisfies some malleable standard of reasonableness, frequently applied by judges in an ad hoc manner. This approach is consistent with pragmatism's antiformalism and with its emphasis upon consequences.

Balancing is the quintessential pragmatist method. When the Court balances, the government usually wins. This results in part from the way it defines competing interests. Typically the Court places the individual criminal defendant's privacy, property, or liberty interests on one side of its metaphorical scales, and balances those discrete and isolated interests against the government's broad interest in protecting all of society from the transgressions of individual lawbreakers. With the issues so characterized, it is hardly surprising that judges usually "discover" that the balance favors the government. The interest all members of society share in being protected from crimes easily outweighs any interest an individual or small class of individuals may have in engaging in illegal behaviors. Social interests usually prevail, as well, when the Court decides what privacy expectations are reasonable.

Until the 1960s the Court generally relied upon the residue of the formalist linkage between property and privacy rights to determine whether government conduct constituted a search regulated by the fourth amendment. After Olmstead, a search was an intrusion entailing a physical trespass upon a constitutionally protected area. This formulation's failure to regulate the use of new technologies allowing the government to achieve nontrespassory seizures of intangible evidence, including conversations, eventually drove the Warren Court to replace it with one grounded in legal pragmatism.

In Katz v. United States the Court held that FBI agents acting without a warrant violated the Fourth Amendment by attaching an electronic listening and recording device to the outside of a public telephone booth and monitoring Katz's conversations without first getting a search warrant. The Court explicitly overruled Olmstead 's property-based requirements of a trespass into a constitutionally protected area and the search and seizure of tangible property. Instead, the Court shifted the focus of the basic inquiry, concluding that the Fourth Amendment protects people and not places. As a result: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Perhaps because the standard described in this passage is so amorphous, the Court quickly came to rely upon a two-part test taken from the second Justice john marshall harlan'sconcurring opinion. Under this test, a protected Fourth Amendment interest exists when a person exhibits a subjective expectation of privacy and the expectation is one that society recognizes as "reasonable."

This two-part "expectations" formula has become the linchpin of Fourth Amendment privacy analysis, and the Court's decisions applying it rest upon the kinds of legal pragmatist ideas discussed above. By asking whether the expectation in dispute is one society is willing to recognize as reasonable, the test's second prong implicitly encourages decisionmakers to define fundamental constitutional values by referring to contemporary social values, goals, and attitudes. The ultimate goal of this analysis is not to obey existing legal authorities, even if those rules represent value choices made by the Framers that are embodied in the Constitution's text. The language of the test instead emphasizes present realities, found in the existing social context. By making the ultimate standard "reasonableness" from a social perspective, the test implements the pragmatist rejection of fixed truths and adopts a flexible standard that can be manipulated to achieve present instrumental goals.

The pragmatist foundations of contemporary expectations analysis are illustrated by the Court's leading opinion involving aerial surveillance of private property. In California v. Ciraolo (1986), police officers lacking probable cause conducted a warrantless inspection of Ciraolo's backyard from a private airplane flying at an altitude of 1,000 feet. They identified marijuana growing in the fenced yard, photographed it, and used this information to obtain a search warrant. Police officers executing the warrant seized the marijuana plants.

The Court acknowledged that the backyard lay within the curtilage of the home, a conclusion that seemingly required suppression of the fruits of the warrantless aerial surveillance because the Court had only recently confirmed, in Oliver v. United States (1984), that the heightened Fourth Amendment protections associated with the home applied within its curtilage. Instead, a bare majority applied the Katz expectations test, and determined that this surveillance was not a search. The Justices recognized that Ciraolo had manifested a subjective expectation of privacy (his yard was concealed by two fences), but held that Ciraolo had no reasonable expectation of privacy because the warrantless observations "took place within public navigable airspace in a physically nonintrusive manner." Katz had expressly overruled the trespass doctrine, but the majority did not base its decision on constitutional rules; indeed it gave only a cursory nod to its own precedents. Instead, it looked to other sources. Because Federal Aviation Administration regulations permitted airplanes to fly at this altitude, someone could be up there, therefore we cannot reasonably expect privacy from eyes spying from above.

The majority's reasoning confirms the pragmatist bases of the Court's analysis. It was not the law as a system of rules that the Court cited to justify its reasoning. The decision ultimately seems to rest upon the Justices' idiosyncratic views about the relevant social context, including the nature of contemporary social realities and goals, rather than upon any reasoning from relevant constitutional authorities.

Once again, the introduction of pragmatist ideas into Fourth Amendment theory has overwhelmed the rule-based warrant model. In a remarkably diverse array of settings, the Court has concluded that intrusive government conduct did not constitute a search because the people affected had no reasonable expectation of privacy. For example, the Fourth Amendment does not regulate nontrespassory surveillance of buildings within a home's curtilage from a helicopter, and a person has no reasonable expectation of privacy in the contents of closed, opaque garbage bags deposited on the curb outside his home. Extensive attempts to exclude trespassers, including erecting fences and posting "no trespassing" signs, do not create a reasonable expectation of privacy in open fields or buildings lying within them. Installing an electronic beeper to monitor a person's travels in public does not invade a reasonable privacy expectation, but tracking the beeper in a private home may. Utilizing trained drug detection dogs to sniff travelers' luggage is not a search. In other cases, the Court has approved warrantless intrusions because people have a lessened expectation of privacy in their automobiles and containers located in them.

This kind of judicial behavior is not an anomaly in contemporary legal culture. It represents not an aberration from the norm, but rather is consistent with the pragmatist concept of legal decisionmaking now dominant in our legal culture. The Court's efforts at balancing to determine whether government conduct is reasonable and its efforts to define what expectations are reasonable exemplify pragmatist decisionmaking based upon subjective ideas about social realities and goals that is relatively unconstrained by antecedent rules. Because many of those rules have protected individual privacy, property, and liberty rights, Fourth Amendment pragmatism has produced a body of case law that tends to expand government power, particularly as exercised by law enforcers and others working in the executive branches of state, local, and federal governments.

Morgan Cloud
(2000)

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