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Assuming Violations of the Fourth Amendment and Then Deciding the Scope of the Exclusionary Rule:
Today's 5-4 decision in Herring v. United States reminds me of a broader point about Fourth Amendment cases: If you like the exclusionary rule, you really really don't want the Supreme Court deciding the scope of the exclusionary rule in cases like Herring and Hudson v. Michigan in which the Court simply assumes without deciding that the Fourth Amendment was violated and then decides if suppression is an appropriate remedy. The atmospherics are all wrong in such cases because the Justice are looking at a fact pattern in which it's not clear that something actually went wrong. The defendant is left in the tough position of demanding exclusion of evidence of guilt when it's not really clear that his rights were violated in the first place.

  I think that's a tricky position to argue for two reasons. First, the absence of a clear violation makes the legal issue rather abstract: From the defendant's standpoint, you don't have the actual case of a clear harm to make the deterrence argument more concrete. And second, the assumption that the Fourth Amendment was violated when it's not clear it actually was leaves the impression that maybe the Fourth Amendment is so easily violated that the court needs to limit the suppression remedy to keep things balanced. Under existing law, the Supreme Court takes a balancing approach to the exclusionary rule, imposing suppression when needed for deterrence. The more the Fourth Amendment is violated, however, the greater role there is for balancing.

  Assuming a violation below when one might or might not exist tends to leave the impression that balancing is all the more important. It hints that the scope of the Fourth Amendment itself is starting to cover technicalities rather than core clear violations. I think this tends to invite more balancing, and with it more chipping away at the exclusionary rule.
Oren:

From the defendant's standpoint, you don't have the actual case of a clear harm to make the deterrence argument more concrete.

I'm confused by this statement. In both Herring and Hudson, defendants were clearly harmed by police conduct -- in the first instance by being seized without warrant and in the second by violation of the terms of a warrant (which, IMO, is equivalent to not having one in the fist instance).

If you were pulled over for a minor traffic violation on your way home from the office and then detained and searched without legal justification, you wouldn't consider that concrete harm?!
1.14.2009 3:21pm
Angus:
Hopefully during an Obama presidency Scalia and/or Kennedy will retire and we can get a replacement Supreme Court Justice who respects the 4th amendment. I also hope Obama will follow the precedents laid down by the two Bushes and pick young Justices who can reasonably be expected to sit on the court for 25-30 years.

If the court is going to be political, we might as well be more open about it.
1.14.2009 3:27pm
cirby (mail):

Hopefully during an Obama presidency Scalia and/or Kennedy will retire and we can get a replacement Supreme Court Justice who respects the 4th amendment.



Yeah, that way he can get a Court well on the way to tossing out the 2nd...
1.14.2009 3:33pm
Abdul Abulbul Amir (mail):


If the court is going to be political, we might as well be more open about it.


If the court is going to be political, it should be directly accountable to the voter. That is, elected or subject to recall.
1.14.2009 3:35pm
Abdul Abulbul Amir (mail):

BTW, given the plain reading of the amendment it would seem the search was mistaken, but it was certainly not "unreasonable."
1.14.2009 3:38pm
HaNK:
Great post, Orin.
1.14.2009 3:39pm
OrinKerr:
Oren,

I was referring to Fourth Amendment harms. In both Herring and and Hudson, it was unclear if the Fourth Amendment was actually violated. Of course, there are a lot of bad things that don't violate the Fourth Amendment.
1.14.2009 3:39pm
PatHMV (mail) (www):
Angus, you reveal significant ignorance with your comments about Justice Scalia. In fact, he is often far stronger with the Fourth Amendment itself than many of the more "liberal" justices are. It's where one leaves the text of the 4th Amendment in favor of judicially-created remedies where Justice Scalia becomes more "conservative."
1.14.2009 3:39pm
The Federal White-Collar Criminal:
This is only a less serious symptom of why the exclusionary rule has done so much damage to substantive Fourth Amendment rights. Instead of deciding Fourth Amendment cases where the aggreived party is an innocent victim of police misconduct, the court ends up deciding whether to supress evidence and free people who are (usally quite clearly) guilty. The framing is entirely wrong. Cases like Herring, where it's not even clear the police did anything wrong, are just one step further than that.
1.14.2009 3:44pm
JWR (mail):
Orin, I completely agree that a defendant doesn't want the Supreme Court deciding cases this way. But where does the blame lie there? Doesn't it lie with the Court? This is a rhetorical device the Court uses when it wants to narrow the exclusionary rule: assume the violation but don't say there actually is one, then the next decision -- not to exclude the evidence -- comes off as rhetorically much more reasonable.

It's the Court's decision whether to assume the violation and then decide the exclusionary rule issue. That's not the defendant's decision.

Just another example of opinion-writing as an exercise in rhetorical persuasive writing, rather than trying to write an objective, clear explanation for the result. Sometimes judges do the latter. This isn't one of those times.
1.14.2009 3:48pm
ReedLStudent:
Professor Kerr,
Are you referring to the fact that Herring's arrest would not have violated the Fourth Amendment if he had been arrested for a felony? The majority opinion states his arrest was for "failure to appear on a felony charge." Unless I am mistaken, the Court assumed a Fourth Amendment violation and didn't mention whether the crime was a felony or a misdemeanor.
1.14.2009 3:52pm
Michael Masinter (mail):
A preliminary question, followed by a thought. If the Court extends Herring to ordinary negligence in assessing probable cause as Tommy Goldstein predicts, then doesn't the following obtain?

1. When a law enforcement officer violates the fourth amendment negligently (that is, not in violation of clearly established law), but in doing so fails to discover any evidence of a crime, the individual searched / seized in violation of the fourth amendment cannot recover damages for the unconstitutional conduct and associated injury because the officer will be entitled to qualified immunity.

2. When a law enforcement officer violates the fourth amendment negligently, but in doing so discovers evidence of a crime, the individual searched / seized in violation of the fourth amendment cannot avoid prosecution based on the evidence by having it suppressed, and cannot even sue for damages without violating Rule 11 since the finding of simple negligence on which the denial of a motion to suppress would rest would, under the law of issue preclusion, bind the defendant in future litigation, establishing establish qualified immunity and preventing the defendant from even claiming gross negligence or a willful violation (not to mention problems arising from Heck v. Humphrey if the defendant is convicted).

I think that covers the universe of negligent violations of the fourth amendment, leaving the null set for cases in which the fourth amendment can be said to apply to negligent conduct. How is that different from introducing a state of mind element to the fourth amendment?
1.14.2009 3:57pm
gasman (mail):

The right... against unreasonable searches and seizures, shall not be violated...

So it all hinges upon the definition of 'unreasonable'. Any search of me, or my property, by my reasoning, is unreasonable. When properly armed with a warrant I must grudgingly submit; but you won't see me boasting about having done anything patriotic for having submitted to my government.

My parents take a more rightwing view with their thinking along the lines 'I have nothing to hide, so therefore if the government snoops, searches or whatever with myself or my things, then that's fine by me'. They think that they gain safety and security by having others 'with something to hide' be searched.
In distinction, my thoughts are, 'Since I have nothing to hide, it is quite unreasonable for anyone to go looking there'. I don't want to be subject to search in any way because I value my privacy to the same extent that someone carrying a couple of kilos might also value their privacy.
1.14.2009 4:03pm
David Welker (www):
I think this rhetoric of "chipping away" at the exclusionary rule is interesting. It is as if certain justices want to do away with it completely, but feel obligated to show some deference to it, perhaps for stare decisis reasons. They must somehow feel that "chipping away" at the rule rather than overruling it completely is somehow more acceptable. Or is this "chipping away" of the exclusionary rule somehow accidental, an act of negligence rather than choice?

It seems to me that Orin's rhetoric sort of implies a negligent "chipping away." If you present certain cases before the court (those where it is assumed the 4th Amendment is violated, but where you could argue it was not) it is going to lead the court to balancing.

Is balancing a clumsy tool, one that leads to accidental chipping away? Or is the problem that once you introduce balancing, those inclined to chip (because they are afraid to just overturn the rule completely out of respect for precedent) will now have an opportunity?

I don't by it. I think that balancing only leads to chipping away when the justices desire that result. I don't think it is something that happens by accident for the most part. (Although, it must be acknowledged that the Supreme Court does not have complete control over how lower courts interpret its decisions.) Also, I do not think you could prevent a majority of justices who desired to chip away intentionally from introducing balancing. It is not as though a majority of justices desiring to chip away rather than overrule would not be able to introduce balancing as their tool, regardless of the sort of cases before the Court.

Or, is the idea that justices who respect stare decisis will be afraid to introduce balancing if it has not already been an established part of jurisprudence in a particular area? Will such judges, despite their desire to chip away, simply rule against that desire, because balancing as a tool has not been introduced to a particular area of law?

Maybe. I suppose it is possible.

My view though is that this is rather speculative. I think if you want to avoid "chipping away" at something, you vote for a President that will vote for justices who are not inclined to chip away in the first place.

Also, I don't think that Orin's point is actionable. An attorney has a duty to represent his client. Representing your client means asserting their 4th Amendment rights were violated, not conceding that they weren't. What is the relief for your client whose rights you concede was not violated? So, even if their were some strategic benefit in terms of creating law to be gained by making this concession, it seems that such a move would not be available to defense counsel concerned about the "chipping away" of the exclusionary rule.

More interestingly though, this move might be open to prosecutors who in fact did want to see the exclusionary rule "chipped away" a little bit more via the introduction of balancing. The move, I suppose, would be to not argue with defense counsel when it is asserted that the 4th Amendment was violated so that the court is faced with a situation where it feels necessary to introduce more balancing, which I assume for the sake of argument leads to more potential for "chipping."

Here, 4 justices would not have found such a move to be persuasive. Which, in my view, is indicates that more important than this particular strategic decision is the membership of the Court itself.
1.14.2009 4:05pm
OrinKerr:
ReedLStuden,

No, I was referring to this point from the majority opinion:

When a probable-cause determination was based on
reasonable but mistaken assumptions, the person sub-
jected to a search or seizure has not necessarily been the
victim of a constitutional violation. The very phrase
"probable cause" confirms that the Fourth Amendment
does not demand all possible precision. And whether the
error can be traced to a mistake by a state actor or some
other source may bear on the analysis. For purposes of
deciding this case, however, we accept the parties' as-
sumption that there was a Fourth Amendment violation.
The issue is whether the exclusionary rule should be
applied.
1.14.2009 4:08pm
Terrivus:
Orin, your post raises the following question that I've mulled over several times in the past couple years.

The recent trend in the SCt bar has been the rise of clinics/practitioners that find cases (usually criminal) that are "cert-worthy," assume them from another lawyer, and petition for cert, with relative success.

Without their involvement, the case likely wouldn't have gone any further than the intermediate appellate courts. So it's a small gain for that particular defendant. But with their involvement, the existence of a right-leaning court means a greater-than-likely chance of an adverse decision -- one that inadvertently ends up contributing to the crystallization of law against all such similarly situated defendants. Instead of a situation where a few circuits might favor the defendant, you get a situation where all circuits now must favor the prosecution.

So the question is, on certain subjects, does the Goldstein/Supreme Court approach to SCt practice actually do more harm than good to the persons they purport to represent?

I'm not saying these types haven't ever won a case at the Court; certainly they have. But I would love to see their cert-granted to case-won ratio. If it's especially high, one wonders if these outfits are doing more harm than good.
1.14.2009 4:19pm
Dave N (mail):
Do I detect a bit of rhetorical slapdown on the Chief Justice's part in Footnote 2:
2 JUSTICE GINSBURG's dissent champions what she describes as " 'a more majestic conception' of . . . the exclusionary rule," post, at 5 (quoting Arizona v. Evans, 514 U. S. 1, 18 (1995) (STEVENS, J., dissenting)), which would exclude evidence even where deterrence does not justify doing so. Majestic or not, our cases reject this conception, see, e.g., United States v. Leon, 468 U. S. 897, 921, n. 22 (1984), and perhaps for this reason, her dissent relies almost exclusively on previous dis-sents to support its analysis.
And if it was, is this a predicter of more fireworks this Term?
1.14.2009 4:22pm
Ugh (mail):
It seems to me that the idea that the exclusionary rule is for deterrance purposes is fundamentally misguided and thus any "balancing" of deterrance vs. social harm is wholly illegitimate.
1.14.2009 4:26pm
Al Maviva:
I think that covers the universe of negligent violations of the fourth amendment

You seem to assume that the only people capable of committing negligence in this scenario are the police officers. What about if the court that issued the summons was at fault, and not the police? What if a warrant remained on the books due to the individual's failure to clear it - e.g. civil traffic summonses from light cameras that I've received to the effect that I will be in contempt of court for failure to appear, but 'if you think this notice is erroneous you have 30 days to contact this court and provide evidence...'

The exclusionary rule is is meant to deter police misconduct, not punish simple negligence which may not even have been committed by the police. If police negligence is grounds for sanctioning the police, then things like suspect car crashes caused in part by police high speed pursuit should force the dismissal of any related criminal charges like reckless driving or evading arrest.
1.14.2009 4:27pm
OrinKerr:
Ugh,

Is that you, Justice Brennan?
1.14.2009 4:30pm
Oren:
Orin writes:

I was referring to Fourth Amendment harms. In both Herring and and Hudson, it was unclear if the Fourth Amendment was actually violated. Of course, there are a lot of bad things that don't violate the Fourth Amendment.

Ah, I didn't read your syntax correctly. My apologies.
1.14.2009 4:40pm
Dave N (mail):
Maybe it's the federalist in me, but I find the notion of the federal government prosecuting a case in which it otherwise had no direct involvement to be rather troubling.

We have myriad of federal law enforcement agencies, each of which is generating cases for federal prosecution. Yet here the U.S. Attorney prosecuted a case with no apparent federal law enforcement nexus. Local sheriff arrests man for drugs and weapons and the case ends up in federal court.

I suspect the feds took the case because federal penalties were more severe than state penalties for this conduct and because the feds want to "crack down" on career criminals possessing firearms. That said, I do not like the practice of federal poaching of cases, whether the state agreed to the poaching or not.
1.14.2009 4:48pm
Angus:
Angus, you reveal significant ignorance with your comments about Justice Scalia. In fact, he is often far stronger with the Fourth Amendment itself than many of the more "liberal" justices are.
This is the same Scalia that wrote how we no longer need be very concerned about the police violating 4th amendment rights because the police now days are trained professionals?
1.14.2009 5:00pm
Hadur:
This is the same Scalia that wrote how we no longer need be very concerned about the police violating 4th amendment rights because the police now days are trained professionals?

Not sure, but it is the same Scalia as in the thermal imaging case.
1.14.2009 6:03pm
David Schwartz (mail):
Terrivus: Bad as bad law is, unclear law is usually worse.
1.14.2009 6:05pm
whit:

My parents take a more rightwing view with their thinking along the lines 'I have nothing to hide, so therefore if the government snoops, searches or whatever with myself or my things, then that's fine by me'. They think that they gain safety and security by having others 'with something to hide' be searched.
In distinction, my thoughts are, 'Since I have nothing to hide, it is quite unreasonable for anyone to go looking there'. I don't want to be subject to search in any way because I value my privacy to the same extent that someone carrying a couple of kilos might also value their privacy.


the psychological reasons why consent searches work (and many fail to grasp... continually) is that those who are guilty and know they are, are sometimes going to consent to a search because their desire to allay suspicions (by consenting) overrides their fear that the item will be found. it's an interesting psychological dance.

while people who have nothing to hide will frequently also consent, that is also true.

many people simply believe that the very idea of a person who is hiding contraband consenting to a search is ridiculous (based on their misunderstanding of psychology usually) and thus conclude the search must have been coercive, since why would somebody who was hiding drugs "consent" in their minds.
1.14.2009 6:12pm
R Nebblesworth:
What is a better or at least an alternative remedy than the exclusionary rule? Civil damages against government officials or law enforcement officers? Jail time for unreasonable searchers? How do these square with sovereign immunity?
1.14.2009 6:31pm
whit:

What is a better or at least an alternative remedy than the exclusionary rule? Civil damages against government officials or law enforcement officers? Jail time for unreasonable searchers? How do these square with sovereign immunity?



since our supreme court loves looking at european jurisdictions so much (at least in death penalty cases), maybe you could find your answer there. i know england doesn't have an exclusionary rule (at least not how we conceive one), etc.

i'm not criticizing the exclusionary rule here, but saying the places to look for alternative remedies are other jurisdictions.

since our scotus thinks an exclusionary rule is required, it's a nice academic exercise at least
1.14.2009 6:59pm
Kent Scheidegger (mail) (www):
"...leaves the impression that maybe the Fourth Amendment is so easily violated that the court needs to limit the suppression remedy to keep things balanced."

Is there anything wrong with leaving a correct impression?

"It hints that the scope of the Fourth Amendment itself is starting to cover technicalities rather than core clear violations."

Starting? It's being going on for decades. See, e.g., Arizona v. Hicks, 480 U.S. 321 (1987).
1.14.2009 7:19pm
Applekeys:
Terrivus: I've wondered that too. Goldstein in particular keeps raising these issues only to get knocked down. Orin wrote extensively about one last year, Virginia v. Moore, where he thought the S. Ct. got it wrong (though wrong 9-0) in the state's favor over the government.

That said, the Court still probably does not take enough criminal cases, though, then again, the ones they do take tend to be these constitutional issues rather than the myriad of little quirky cases arising daily in federal criminal practice.

As far as the primary question, I agree that it forces the Justices to try to imagine hypothetical harms that the facts may not put before them. I don't know the posture of this case; does the court ever do this sometimes by choosing the question it grants cert on? Like say there's a tenuous finding of a 4th A violation and the court finds it excluded; and the Court grants cert only on the exclusionary question? Is that under anyone's control?
1.14.2009 8:05pm
Publius Minimus:
Orin -- The pending Kansas v. Ventris case has the same dynamic; check out the reply brief. It will be argued in a week.
1.14.2009 10:33pm
Dilan Esper (mail) (www):
Professor Kerr:

Do you think we need a Saucier v. Katz style rule for Fourth Amendment claims?
1.15.2009 2:08pm
Kent Scheidegger (mail) (www):
Dilan, given that the Court has sua sponte asked for briefing on whether to overrule that aspect of Saucier, I don't think expanding it to a new area is very likely.
1.15.2009 4:25pm
Dilan Esper (mail) (www):
Kent:

I totally agree that it isn't likely to be adopted. I was asking whether, in light of Professor Kerr's observation about the exclusionary rule, he thought it might be a good idea.
1.15.2009 7:01pm

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