April 23, 2013

Searches and Seizures: Reasonable or Unreasonable?

Two recent Supreme Court cases address the balance between liberty and security in criminal cases.

Matters of criminal procedure were not much in evidence in the aftermath of the bombings at the Boston Marathon. Nary a peep of protest was raised against the massive lock-down and manhunt that followed hard on the heels of that senseless tragedy.

But now that some degree of normalcy has returned, it is important to think about these procedural issues. To that end, two recent Supreme Court cases address law enforcement and the Fourth Amendment. Florida v. Jardines deals with searches in connection with illegal drug trafficking and Missouri v. NcNeely addresses compelled blood tests on suspected drunk drivers.

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  Illustration by Barbara Kelley

Both of these cases return to fundamental questions that have previously divided the Court. What is remarkable about the Supreme Court’s recent Fourth Amendment jurisprudence is that these divisions are not apparent. The opinions in both cases lack reference to the endless theoretical debates between the hard-nosed originalists and the equally insistent defenders of the “Living Constitution.” In consequence, these close decisions have generated strange alliances that have transcended the deep five-to-four conservative-liberal split.

Back to Constitutional Basics

To understand why, it is useful to start with the complete text of the Fourth Amendment.

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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The impulse for the Amendment was the 1765 English case of Entick v. Carrington, where Lord Camden refused to allow public officials to ransack the plaintiff’s premises under “general warrants.” His decision inspired the Warrant Clause of the Fourth Amendment, which required government officials to “particularly describe” what they hoped to search or seize.

Today, as a theoretical matter, all nine Supreme Court justices rightly recognize that Entick supplies the indispensable first step for dealing with an age-old problem—namely, the extent to which the police may infringe on the ordinary rights of individuals to personal liberty and private property in order to control criminal activity. No justice thinks that the police should have unlimited discretion in this area. Yet none doubts that the police perform vital functions needed for the preservation of our ordered liberty.

Since all the justices are working to balance the same set of considerations, modern decisions in this area tend to focus on setting the right balance in hard cases. On this point, the key insight is one that all nine justices undervalue, the need for bright-line rules in routine cases.

Drug Busts and Privacy

In Jardines, the Supreme Court had to decide whether the government conducted a search when it brought a trained drug-sniffing dog on a six-foot leash to the front door of the Jardines’ house, where it went wild after sniffing the cannabis that was growing inside. It is remarkable that a fact pattern this simple could provoke a five-to-four split, where Justice Antonin Scalia, joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, found an unconstitutional search. That decision was met by a dissent from Justice Alito, joined by Justices Roberts, Kennedy, and Breyer.

Scalia’s position was that bringing a dog onto the property near the house—into the so-called curtilage—was done with the specific purpose of finding out what went on inside the walls of the house. In my view, his ultimate position was clearly correct. That outcome rests on a simple analysis of what a search is: a purposive act made in order to discover new information. Therefore, an accidental discovery, such as when a police officer just happens to smell odors coming from the street while engaged in other business, is not a search. The means by which this (deliberate) search takes place bears no relationship to the resolution of the constitutional issue.

Unfortunately, Justice Scalia embellished that basic insight with two unneeded qualifications. First, he insisted that under our Fourth Amendment jurisprudence, the “home is first among equals.” Textually, however, “houses”—which are less intimate than “homes” anyhow—receive no priority over persons, papers, and effects. Indeed, it is easy to imagine cases where the violation of these other three interests could give rise to equal or greater umbrage. As a matter of sound textual interpretation, it is always risky to introduce fine distinctions among items that are bracketed together in the original text.

Next, Justice Scalia held that the case was simple because the police invaded the Jardines’ curtilage in order to conduct their search. But the offensive search here was not about what was found in that location, but the information behind closed doors. Property is thus a means to protect privacy, a broader notion. Yet that information might in some cases be discoverable by a skilled dog or other instrumentality that the police operated from Jardines’ front gate, the public streets, or a neighbor’s porch. In these instances, the quantum of relevant information is the same as that found from the trespass itself.

So the question arises of why the protection of the home diminishes because the deliberate search takes place from a somewhat more remote location. The well-known 1967 Supreme Court decision in Katz v. United States had already made it clear, in some cases at least, that a trespass into some protected space was not necessary to create a Fourth Amendment violation. In that case, the government agents attached an electronic listening device to the outside of a public phone booth to gather evidence about the illegal gambling activities of the accused. The phone booth was said to be a place where anyone enjoys a reasonable expectation of privacy.

There is a similar expectation in Jardines, even though there was no “physical” invasion of the premises. The police entry is not subject to constitutional oversight because the sniffing dog trampled a blade of grass. Rather, the protection of the privacy interest dominates. No private individual could escape a damage action for invasion of privacy if he or she listened to intimate conversations from a distance. The government should fare no better in this context.

In dealing with this case, Justice Scalia had to address the government’s contention that its entrance onto the property did not constitute a trespass because of the standing common law rule that gives ordinary people an “implied license” to enter the property. In his dissent, Justice Alito pushed this notion by noting that people are normally allowed to beat a path to the front door for a wide range of social and business purposes, and need only retreat once they are told to leave.

Justice Scalia, however, is far more faithful to the common law rules when he concludes, “The background social norms that invite a visitor to the front door do not invite him there to conduct a search.” This little debate vividly shows how good constitutional law depends critically on mastering common law principles, which Justice Alito failed to do.

The common law recognizes two classes of permitted entrants—business invitees and social guests. These may differ in the degree of protection that they receive against physical injury on the premises, but those refinements are irrelevant here because all permitted entrants propose transactions that work for the benefit of the landowner. In contrast, the landowner gives no consent, express or implied, to those who enter with hostile intent, like the government officials here. The simple rule gets this case right, and offers greater clarity to law enforcement personnel and property owners alike, without any needless qualifications.

The Forfeited Rights of Drunk Drivers

In McNeely, a deeply divided Court revisited the question of whether the police must obtain a search warrant before drawing blood from an errant driver who refused to submit to a breath test that measured his alcohol concentration. The traditional view, articulated by the late Justice William Brennan in the 1966 case of Schmerber v. California, put forth two propositions that are in tension with each other.

The first was that drawing blood from a person counts as both a search and a seizure of the person, which it surely does. The second was that owing to the “exigent circumstances” stemming from the rapid decay of blood alcohol, the arresting officer could order that search without first getting a warrant or showing the more exacting “probable cause” requirement that the Constitution imposes for many searches.

In my view, Justice Brennan (who was very solid on Fourth Amendment issues) got the issue right when he adopted a per se (or across-the-board) rule approving these searches. The level of intrusion is both low and uniform, and the gains from the controlling of drunk driving are sufficiently large, that this per se rule is a sensible safe harbor in an area that condemns all “unreasonable searches and seizures.”

Unfortunately, in McNeely, Justice Sotomayor took a wrong turn by concluding that the prohibition against unreasonable searches and seizures requires arresting police officers to conduct a detailed factual examination to determine whether the rate of decay of blood alcohol justifies ordering the blood test without the benefit of a warrant.

But just what is to be gained by this “fact-intensive” analysis conducted on a case-by-case basis? For starters, the admitted violation of traffic rules gives clear evidence that something is amiss. In and of itself, it surely provides reasonable suspicion for thinking alcohol may be involved, and perhaps even the probable cause needed to execute the warrant.

Everyone knows that blood alcohol decays at a rapid rate, even if that rate is not uniform across all persons. Just running this time-consuming evaluation could result in critical delays in obtaining fast-disappearing evidence, which could make any test inconclusive. Besides, it is highly unlikely that any remote magistrate would be willing to deny the request for a warrant here, so that the case-by-case approach leads to both higher error and administrative costs.

There is a sobering lesson here. Bright-line rules may not work in every case, but in this particular instance, there has not been the slightest peep of general protest with the uniform application of the Schmerber rule since it was first announced close to 50 years ago. But Sotomayer’s new case-by-case rule may not play out so well. It is a delusion to think that individualized decisions always lead to better outcomes.

One clear anxiety is whether the police discretion could mask racial-profiling, which is, without question, a highly divisive and emotional issue today. The ad hoc outcomes under McNeely invite such charges, because the discretion that is said to protect privacy can also be used to single out certain groups for unwelcome scrutiny. Jardines, on the other hand, will not generate any such backlash to the extent that it controls police behavior.

Taking both cases together sends a clear message. Some issues of course will involve matters of degree. No one has a magic formula to determine what counts as reasonable suspicion or probable cause. But that knowledge should not stop the search for clean and workable rules. With Jardines, that approach gives somewhat greater protection to potential criminals; with McNeely, it gives somewhat less. But the public wins both times. The ability to craft sensible per se rules leads to better results overall, which, when all is said and done, leads to the right balance of liberty and security that everyone desires in Fourth Amendment cases. 


Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).


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