The Fourth Amendment in Flux

The Roberts Court, Crime Control, and Digital Privacy

Michael C. Gizzi, R. Craig Curtis

• Verlag: University Press of Kansas
• Jahr: 2016
• ISBN:
  9780700622580
• Thema: Politics & International Relations
• Thema: Political Surveillance & Privacy

When the Founders penned the Fourth Amendment to the Constitution, it was not difficult to identify the "persons, houses, papers, and effects" they meant to protect; nor was it hard to understand what "unreasonable searches and seizures" were. The Fourth Amendment was intended to stop the use of general warrants and writs of assistance and applied primarily to protect the home. Flash forward to a time of digital devices, automobiles, the war on drugs, and a Supreme Court dominated by several decades of the jurisprudence of crime control, and the legal meaning of everything from "effects" to "seizures" has dramatically changed. Michael C. Gizzi and R. Craig Curtis make sense of these changes in The Fourth Amendment in Flux. The book traces the development and application of search and seizure law and jurisprudence over time, with particular emphasis on decisions of the Roberts Court.Cell phones, GPS tracking devices, drones, wiretaps, the Patriot Act, constantly changing technology, and a political culture that emphasizes crime control create new challenges for Fourth Amendment interpretation and jurisprudence. This work exposes the tensions caused by attempts to apply pretechnological legal doctrine to modern problems of digital privacy. In their analysis of the Roberts Court's relevant decisions, Gizzi and Curtis document the different approaches to the law that have been applied by the justices since the Obama nominees took their seats on the court. Their account, combining law, political science, and history, provides insight into the court's small group dynamics, and traces changes regarding search and seizure law in the opinions of one of its longest serving members, Justice Antonin Scalia.At a time when issues of privacy are increasingly complicated by technological advances, this overview and analysis of Fourth Amendment law is especially welcome—an invaluable resource as we address the enduring question of how to balance freedom against security in the context of the challenges of the twenty-first century.

PART I

1. Explaining the Roberts Court’s Fourth Amendment Jurisprudence

David Leon Riley was stopped by a San Diego police officer for having an expired vehicle registration in August 2009. When the officer learned that Riley also had a suspended driver’s license, he placed Riley under arrest. Riley was searched and handcuffed. His car was impounded, and an inventory search of the car was conducted, revealing loaded guns under the hood. These weapons were later matched by ballistics testing to guns used in a shooting that took place three weeks prior to Riley’s arrest. During the initial search of Riley when he was arrested, the police officer seized his smartphone and scrolled through the stored messages on it. At the station, a more thorough search of the digital content on the phone revealed evidence of gang affiliation and gang activity in Riley’s text messages, pictures, and videos. These digital files were seized and used as evidence at Riley’s trial. His attorney objected to the use of the digital files, but the judge allowed the jury to see them. Riley was convicted of attempted murder, assault with a semiautomatic handgun, and shooting at a vehicle. Because the jury believed that he was a member of the Bloods street gang and that the shooting was part of gang activity, Riley was given an enhanced sentence of 15 years to life.

David Riley’s attorneys appealed his conviction through the California courts, but lost at every stage. Their last step was to appeal to the United States Supreme Court, asking the Court to grant a writ of certiorari and hear the case. Throughout the appellate process, Riley’s attorneys maintained that the search of his cell phone was a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The search of his phone was done without a warrant, and there was no emergency to justify a warrantless search. The Supreme Court granted certiorari in January 2014, held oral argument in April, and then, in late June 2014, issued a decision in favor of Riley and another defendant from Massachusetts named Brima Wurie. The case, called Riley v. California, was unanimous in its outcome. All nine justices ruled in favor of the defendants, with just one brief concurring opinion. In a decision that has been viewed as a sweeping victory for digital privacy rights, Chief Justice Roberts’ majority opinion ruled that prior to searching a cell phone, police must first obtain a warrant. The Court held that, unlike a wallet or other things commonly found on a person, a cell phone was different, containing a vast amount of information in which the individual had a strong privacy interest. The police can seize an arrested person’s cell phone, but must then convince a neutral judge that there is probable cause to believe that the phone contains evidence of crime before they can search the digital files on the phone. Riley would get a new trial, and data stored on cell phones acquired a new and protected status under the Fourth Amendment. The decision came two years after the Court ruled unanimously in United States v. Jones (2012) that law enforcement also had to obtain a warrant before placing a Global Positioning System (GPS) tracking device on a vehicle. The FBI had monitored the location of Antoine Jones’ vehicle for a month, and used the evidence to build a drug distribution case against him. Both decisions seemed to mark a significant departure from the normal way the Supreme Court decided search and seizure issues.

Contrast the ruling in Riley with the narrow 5–4 decision the year before in Maryland v. King (2013). Alonzo King was arrested in 2009 for assault after threatening a group of people with a shotgun. At the jail where he was booked, a sample of his DNA was taken with a cheek swab pursuant to state law. Maryland, like many states, had begun the process of routinely collecting DNA to build a forensic database to assist in the solving of crimes.¹ King’s DNA sample was analyzed and added to a database of DNA from known criminals and arrestees. As a matter of routine practice, the results were compared to DNA evidence from unsolved crimes. Four months after his arrest, the DNA test revealed a match with a DNA sample from a rape that occurred in 2003. King was charged and convicted of that rape. At his trial, his attorney unsuccessfully argued that the evidence obtained from the DNA swab in 2009 was an unreasonable search and violated his Fourth Amendment rights. The conviction was overturned on appeal, and the state petitioned the Supreme Court to decide the case.

The Supreme Court granted certiorari and ruled for the state in an opinion written by Justice Kennedy. The DNA swab was a noninvasive procedure that did not violate King’s privacy rights under the Fourth Amendment. Kennedy treated the DNA swab as comparable to fingerprinting or photographing a distinctive tattoo. The majority opinion disregarded the disconnect between the stated administrative purpose of the test, to collect identifying information about the person being booked, and the true purpose of the program, which is to collect information about a broad group of persons to be used in the detection and clearance of crimes. The information about an individual contained in his or her DNA is, for many, at least as important and as private as the pictures and record of texts and phone calls held on a cell phone, and the four dissenting justices objected vigorously.

The experiences of David Riley and Alonzo King illustrate some of the issues that are at stake in Fourth Amendment cases. Each year, more than 60 million people come into contact with the police.² Traffic stops make up more than 40 percent of these encounters, followed by requests for assistance after an accident and stops of people walking on the street. Police officers have enormous discretion to search, issue citations, arrest, or use physical force during these encounters. The law that governs what the police can legally do in these encounters is the Fourth Amendment, which protects against unreasonable searches and seizures. The Supreme Court determines what this law means in practice. Unlike many other parts of the Constitution, the Fourth Amendment is put into practice by police officers thousands of times each and every day. While many of the search and seizure cases that the Court decides are not as high profile as cases judging the constitutionality of the Affordable Care Act or the Voting Rights Act, the Court’s Fourth Amendment jurisprudence plays a large role in shaping the relationship between citizens and the police. It is also an area of constitutional law that the Court hears cases on every year, having decided more than 300 search and seizure cases since the start of the Warren Court in 1953.

In many ways, these two cases illustrate a central tension that exists not only in the constitutional law of criminal procedure, but the criminal justice system as a whole. Herbert Packer first articulated this in his book The Limits of the Criminal Sanction (1968).³ Packer argued that criminal law can be thought of as being torn between two different sets of goals, what he labeled due process and crime control. The Bill of Rights focuses on the rights that the state has to provide the accused before depriving them of life, liberty, or property. Due process includes those steps that are needed to ensure fundamental fairness. When followed faithfully, the demands of due process slow down the criminal process, creating an obstacle course of sorts for police and prosecutors, who must take steps to ensure that the individual’s rights are not denied. This creates tension with the goal of crime control. In a criminal justice system where there are new crimes being committed on a daily basis, there are huge pressures on police, prosecutors, and judges to process cases quickly, and for police to maximize their efficiencies in combating crime. If due process is focused on, then crime control is frustrated. If, on the other hand, crime control is given primacy and police are given extensive discretion and tools to energetically fight crime, then individual rights are diminished.

The tension between due process and crime control is ubiquitous in a democracy such as ours, but for most of the past half-century, the Supreme Court’s approach to the Fourth Amendment has been shaped by the broader politics of crime control that has dominated American politics. Rising crime rates beginning in the 1960s led to a “get tough on crime” approach to public policy characterized by a war on drugs, long sentences, and an end to the leniency that described the American approach to crime and punishment for much of the first half of the twentieth century. Beginning with the presidency of Richard Nixon, justices were appointed to the Supreme Court who shared the desire to mold the law in ways that made it easier to apprehend and prosecute criminals. The Supreme Court pulled away from legal precedents that favored the rights of the accused in the 1970s and 1980s, and replaced them with doctrines that expanded police power, limited application of the exclusionary rule, and carved out numerous exceptions to the Fourth Amendment’s warrant requirements. The transformation that occurred resulted in defendants losing in three out of every four Fourth Amendment cases they brought to the Court from 1981 through 2010.

The ruling in Maryland v. King, allowing DNA evidence to be used in nonrelated cases, was quite consistent with the Court’s general approach to Fourth Amendment issues. By contrast, Riley v. California not only went against the general trend of decisions; it established a broad claim to an individual right in the area of digital privacy. This was different from most of the cases that resulted in outcomes favorable to the defendant in the prior 25 years. Most of those decisions served only to curb some of the excesses of law enforcement activities that sought to expand their power and discretion beyond what even the Court was willing to grant. Riley did more than restore balance; it asserted an individual right with potentially broad consequences for other cases.

Riley v. California and Maryland v. King are both indicative of a tension that exists in the Roberts Court’s Fourth Amendment jurisprudence. Some of this is due to uncertainty about how to apply the Fourth Amendment to new technological innovations, including both those tools used by the police to combat crime and technological devices that citizens rely on in their daily lives. There is evidence that the justices are not particularly adept in the use of all the digital technologies that are a part of modern life,⁴ but we argue that there is more at play than just an inability of the justices to relate to the digital technology of the twenty-first century. For more than a generation, the vast majority of Fourth Amendment cases decided by the Supreme Court have expanded police power in the name of public safety and the need to control crime. Maryland v. King very much reflected that approach. It showed little concern for the privacy implications of government having a record of an individual’s genetic makeup. By contrast, the decision in Riley emphasized the need to protect privacy rights. The Court’s approach to the Fourth Amendment has appeared to be in a state of uncertainty since 2010, as almost half of its search and seizure decisions have favored the defendant, after more than a quarter-century where 75 percent of cases have favored the state. Yet, there is no clear evidence of a new pattern favoring the individual.

Even though law enforcement interests prevail in the vast majority of Fourth Amendment cases, those times when defendants win can generate a sense of dissonance in the law, and certainly send mixed messages to police. You can collect DNA evidence, but you cannot search a cell phone. For every time the Court insists on a warrant before a search, there are two or three cases where it carves out exceptions. The Court has long insisted that searches of a house require a warrant, but will now permit warrantless entry when there are exigent or emergency circumstances, even where the actions of the police themselves create the exigency. Inventory searches of impounded vehicles are allowed to protect against claims of liability, and evidence inadvertently found from the inventory is admissible in court, but the Court ignores the fact that police often impound a vehicle just as a way to conduct a search when they lack probable cause to search otherwise. The Court excludes evidence when police misconduct is the reason for the constitutional violation, but will not do the same when a violation results from judicial error. Individualized suspicion based on probable cause is required for searches, but suspicion-less K9 sniffs for narcotics in automobiles are not even considered to be searches.

There have always been contradictory Fourth Amendment decisions, but from 1981 until 2010, defendants prevailed in a relatively small number of cases. A full 75 percent of all search and seizure decisions since 1981 have favored the police over individual privacy claims. This held true for the last six terms of the Burger Court and the entire Rehnquist Court. The Roberts Court, however, has taken a less certain path. The Supreme Court has decided 36 Fourth Amendment cases in the decade since John Roberts was appointed as chief justice. Roberts’ appointment, closely followed by that of Samuel Alito, marked the first change in the composition of the Supreme Court in 11 years. Chief Justice Rehnquist’s death and the retirement of Justice O’Connor did not mark a significant change in the Court’s makeup. Roberts and Alito shared the same ideological predispositions of their predecessors. It is not surprising, then, that many early Roberts Court search and seizure decisions were entirely consistent with the Rehnquist Court’s decisions. In its first five terms, 73 percent of the 15 search and seizure decisions favored law enforcement interests. But since the appointments of Sonia Sotomayor and Elena Kagan in 2009 and 2010, there has been a marked change in Fourth Amendment cases. Defendants have won in 47 percent of the 21 search and seizure cases decided since 2010. In total, the Roberts Court has ruled for law enforcement interests in only 61 percent of cases.

The Roberts Court’s Fourth Amendment jurisprudence appears to be in a state of flux, something that has not been seen since the early years of the Burger Court in the 1970s. Evidence of this can be seen in the mixed signals that the Roberts Court has sent about its interpretation of some areas of the law. For exam...