The Fourth Amendment: Its History and Interpretation

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Written by Thomas K. Clancy, this is updated listed of case law regarding fourth amendment issues.
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  Supreme Court Case update © 1 UPDATED :   07/01/2010 SUPPLEMENT TO :T HE F OURTH A MENDMENT :   I TS H ISTORY AND I NTERPRETATION (C AROLINA P RESS 2008)by Thomas K. Clancy This supplement summarizes the Supreme Court cases on Fourth Amendment issues beginning withthe 2008 Term , including cert grants. It is periodically updated atwww.NCJRL.org. The updatedsupplements and the Treatise are available atwww.cap-press.com/books/1795.The cases summarized are:1. Qualified immunity: Pearson v. Callahan , 555 U.S. __, 129 S. Ct. 808 (2009) 2. The exclusionary rule: United States v. Herring , 555 U.S. __, 129 S. Ct. 695 (2009) 3. Frisks of vehicle passengers:  Arizona v. Johnson , 555 U.S. __, 129 S. Ct. 781 (2009) 4. Search incident to arrest of vehicle occupants: Arizona v. Gant, 556 U.S. __, 129 S. Ct. 1710(2009) 5. Student searches: Safford School District v. Redding , 557 U.S. __, 129 S. Ct. 2633 (2009) 6. DUI stops: Virginia v. Harris , 130 S. Ct. 10 (2009) (Chief Justice Roberts dissentingfrom denial of certiorari)7. Exigent circumstances : Michigan v. Fisher  , 558 U.S. __, 130 S. Ct. 546 (2009) 8. Reasonableness of a search involving a government-issued pager: City of Ontario v.Quon , __ U.S. __ (decided 06/17/10) Contact information Thomas K. ClancyNational Center for Justice and the Rule of LawUniversity of Mississippi School of LawP.O. Box 1848University, MS 38655662-915-6918tclancy@olemiss.edu  1 © Thomas K. Clancy, 2010. Editing of quotations in this supplement is consistent with theformat set out in the Treatise, including omission of citations and other matter within the quotedmaterial. -1-  1. Qualified Immunity:  Pearson v. Callahan , 555 U.S. __, 129 S. Ct. 808 (2009). T reatise references: § 13.6. Substantiality of the violation and “good faith”§ 13.8. Other remedies Plaintiffs in civil damage suits against government agents have two burdens to overcome.It must be shown that the agent 1) violated the plaintiff’s Fourth Amendment rights and 2) is notentitled to qualified immunity, which would bar the law suit from proceeding. An agent is entitledto qualified immunity if the constitutional right violated was not clearly established at the time of the violation. 2 In Saucier  , the Court established that courts considering such claims must addressthe first question prior to determining whether the agent is entitled to qualified immunity. This“order of battle” had been criticized by several justices 3 and the Court had candidly admitted thatit contradicts its policy of avoiding unnecessary adjudication of constitutional issues. 4 In Pearson v. Callahan , the Court overruled Saucier  in an unanimous opinion written byJustice Alito. The Court concluded:[W]hile the sequence set forth there is often appropriate, it should no longer be regarded asmandatory. The judges of the district courts and the courts of appeals should be permittedto exercise their sound discretion in deciding which of the two prongs of the qualifiedimmunity analysis should be addressed first in light of the circumstances in the particularcase at hand.To support that conclusion, the Court rejected stare decisis considerations in light of theexperience that lower courts had with the Saucier  rule and criticisms of that rule from a variety of sources, including from members of the Court. Nonetheless, the Court recognized that a decisionon the merits “is often beneficial.” Those situations included when little would be gained in termsof conservation of resources in just addressing the clearly established prong and when a discussionof the facts make it apparent that there was no constitutional violation. However, the Court statedthat “the rigid Saucier  procedure comes with a price,” including the expenditure of scare judicialresources and wasting of the parties’ time. It noted that addressing the cases addressing theconstitutional question “often fail to make a meaningful contribution” to the development of FourthAmendment principles for a variety of reasons. Saucier  also made it difficult for the prevailingparty, who has won on the qualified immunity issue, to gain review of an adversely decided 2 Saucier v. Katz, 533 U.S. 194, 201 (2001). Put another way, police officers are entitledto qualified immunity unless it would have been clear to a reasonable police officer that his conductwas unlawful in the situation he confronted.  E.g. , Wilson v. Layne, 526 U.S. 603 (1999); Groh v.Ramirez, 540 U.S. 551, 563 (2004). 3    E.g. , Morse v. Frederick, 127 S. Ct. 2618, 2641 (2007) (Breyer, J., concurring anddissenting) (collecting authorities). 4 Scott v. Harris, 127 S. Ct. 1769, 1774 (2007). -2-  constitutional issue. The Court concluded its decision by finding that the government’s agents wereentitled to qualified immunity and did not address the substantive Fourth Amendment claim. {Thecase involved an undercover drug buy in a house; a buyer signaled the police, who then entered thehouse without a warrant. Some lower courts have recognized a “consent–once–removed” doctrineto permit such warrantless intrusions. The Supreme Court did not address the merits of thatdoctrine.}It takes little insight to observe that the new mode of analysis will result in fewer courtsdeveloping Fourth Amendment principles and fewer cases presenting such issues for review.Avoiding the constitutional issue is, after all, the purpose of giving lower courts the discretion todispose of the case on qualified immunity grounds. 5 What will also result is an increased muddlingof Fourth Amendment and qualified immunity analysis. The Court has stated that, in analyzingqualified immunity claims, “[t]he question is what the officer reasonably understood his powers andresponsibilities to be, when he acted, under clearly established standards.” Those standards will notbe further clarified if courts address only the second question. Indeed, Pearson itself illustrates thispoint. The case involved an undercover drug buy in a house by an informant. After entering thehome and confirming that the seller had the drugs, the purported buyer signaled the police, who thenentered the house without a warrant. The alleged seller, after obtaining suppression of the evidencein the criminal case against him, sued the police. In defense to that suit, a claim was made that the“consent–once–removed” doctrine, which has been recognized by some courts, permitted thewarrantless intrusion. 6 The Supreme Court did not address the merits of that doctrine, skippingdirectly to the qualified immunity aspect of the case and finding that the officers were entitled toqualified immunity because the illegality of their actions had not been clearly established. The resultof  Pearson may become typical: we are left with uncertainty as to the status of a controversial legalprinciple that has divided lower courts. 5 The standard for qualified immunity is equivalent to the good faith exception to theexclusionary rule. Groh v. Ramirez, 540 U.S. 551, 565 n.8 (2004). In United States v. Leon , 468 U.S.897 (1984), the Court established that evidence seized pursuant to a judicial warrant should not besuppressed unless the warrant or the affidavit on which it was based was so clearly defective that theofficers who executed the warrant could not reasonably have relied upon it.  Id. at 922-23. The Courtexplained that lower courts had “considerable discretion” either to “guide future action by lawenforcement officers and magistrates” by deciding the substantive Fourth Amendment question“before turning to the good-faith issue” or to “reject suppression motions posing no important FourthAmendment questions by turning immediately to a consideration of the officers’ good faith.”  Id. at924-25. In light of that discretion, many courts opt to dispose of cases on the basis of good faith,without first considering whether there was a Fourth Amendment violation.  E.g. , United States v.Proell, 485 F.3d 427, 430 (8th Cir. 2007). 6 The “consent-once-removed” doctrine has been applied by some courts when anundercover officer enters a house at the express invitation of someone with authority to consent,establishes probable cause to arrest or search, and then immediately summons other officers forassistance. United States v. Pollard, 215 F.3d 643, 648 (6th Cir. 2000); United States v. Diaz, 814F.2d 454, 459 (7th Cir. 1987); United States v. Bramble, 103 F.3d 1475, 1478 (9th Cir. 1996). TheSixth and Seventh Circuits have broadened this doctrine to grant informants the same capabilities asundercover officers. See United States v. Paul, 808 F.2d 645, 648 (7th Cir. 1986); United States v.Yoon, 398 F.3d 802, 807 (6th Cir. 2005). -3-  Pearson’s new battle order–and the result in Pearson –is likely to make the avoidance of difficult Fourth Amendment questions the norm in cases where a defense of qualified immunity isavailable. Hence, many civil cases will no longer be decided by the lower courts on the merits of the Fourth Amendment claims and, therefore, there will be less cases worthy of review by theSupreme Court. The end result is that the Court will not take as many cases for review because itcan always be said: although the police officer may have violated the Fourth Amendment, that issueneed not be addressed because any such violation was not clearly established. 2. The Exclusionary Rule : United States v. Herring , 555 U.S. __, 129 S. Ct. 695 (2009) . 7 Treatise references: § 13.2. Evolution of exclusionary rule doctrine§ 13.3. Causation: fruit and attenuation analysis§ 13.6. Substantiality of the violation and “good faith” This case can be read narrowly or broadly. The broader reading signals a dramatic restrictionin the application of the exclusionary rule.  Herring , in the short run, will generate a significantamount of litigation as to which reading is correct and will require the Court to address itsimplications. If the broad language employed in  Herring prevails, it will fundamentally change thelitigation of motions to suppress in criminal cases. That is, a central question will be whether theofficer had a culpable mental state; if not, the rule will not apply. If that mode of analysis prevails,it will reduce appreciably the number of cases addressing the merits of Fourth Amendment claimsand expand dramatically the inapplicability of the exclusionary rule.Narrowly, the issue in  Herring was whether the good faith doctrine should be applied whenpolice officers in one jurisdiction checked with employees of the sheriff’s office in another jurisdiction and were told that there was an outstanding warrant for Herring, who was then arrested.Contraband was discovered during the search incident to Herring’s arrest. The report was in errorand the warrant should have been removed from the records but had not been due to the negligenceof personnel in the reporting jurisdiction’s sheriff’s office.Writing for a majority of five, Chief Justice Roberts stated that the exclusionary rule did notapply. A narrow reading of   Herring can be drawn from the following statement by the majority of its holding: “Here the error was the result of isolated negligence attenuated from the arrest. Wehold that in these circumstances the jury should not be barred from considering all the evidence.”Words of limitation jump out from these sentences: “isolated negligence;” attenuation. 8 Hence, 7 The discussion of   Herring and Pearson is drawn from Thomas K. Clancy, The Irrelevancyof the Fourth Amendment in the Roberts Court  , 85 Chicago Kent L. Rev. 191 (2010). 8 Consistent with a narrow view, Roberts later asserted: “An error that arises fromnonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adoptthe rule in the first place.” -4-
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