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.
One word is at the root of so many questions, issues and problems: Unreasonable. Much as we pretend to be reasonable people all, the harsh reality is that no one has as yet found that "reasonable man" the law speaks of so respectfully. Instead, we are left with judges who substitute their notion of reasonable for ours.
This would be more understandable if judges all agreed with each other, but they don't, meaning that lower judges who are reversed are unreasonable, while even our top shelf jurists, the Supremes, frequently find themselves to be part of the unreasonable minority, though it's never entirely clear who will be the unreasonable goat in any particular decision.
Therein lies the problem with the word "unreasonable." Whoever gets it wrong, meaning fails to end up on the winning side of a ruling, is unreasonable. If in a 5-4 Supreme Court decision, we come to learn that four members of our highest court are "unreasonable," shouldn't they immediately be replaced with reasonable judges and sent away to an isolated island for unreasonable people?
At A Public Defender, Gideon notes that John Wesley Hall, the chronicler of all things 4th Amendment for the defense side of the room, has given us a gift.
In what is quite possibly the most (only?) useful post ever written in the legal blogosphere, John Wesley Hall, author of a massive treatise of 4th Amendment Law, gives us a preview of the next edition with 13 “realities” of the 4th Amendment obvious to him after reading a shit-ton (that’s a legal term) of cases. Don’t be fooled. This is essentially a primer for 4th Amendment law. He’s giving away the outline here.
This isn't a post for non-lawyers, looking for the latest outrage or a reason to spit fire. Rather, it's a somewhat jaded effort to splash water on the faces of new lawyers who haven't yet argued their 500th suppression motion, again expressing a near perfect opportunity for the court to punish the cops for ignoring the warrant clause because of their inexcusable conduct, only to hear the judge enunciate, in a clear, calm and cool voice, that the motion is "denied," thereafter mumbling the word "reasonable."
Hall's exasperation shows itself in his lucky 13th "reality" of 4th Amendment law:
13. If you find you don’t completely understand the Fourth Amendment, you’re not alone because hardly anybody does any more. To me, much of the Fourth Amendment has turned into a Rorschach test that means different things to different people, all depending on how they want it to come out. How did just 54 words generate untolled [sic] millions of words in cases, treatises, and law review articles? The U.S. Supreme Court alone has decided about 250 Fourth Amendment cases.
It isn't accidental that Hall suggests that doctrine takes a back seat to outcome. If there is one factor that is most significant in determining the outcome of a suppression motion, it's the inclination of the judge. It's not the facts. It's not the law. It's the willingness of the judge to do the dirty deed of telling the prosecution that they can't use the great evidence that nails the coffin shut on the guilty defendant. The criminal goes free because the constable stumbles.
A great many thoughtful people will find this astounding, contrary to the beloved platitude that we are nation of laws, not men. But words can wiggle, and no word wiggles better than "unreasonable." With minimal effort, there is always an argument to be made that the great value of public safety trumps the minor intrusion on individual rights.
The black letter law is that a warrantless search is per se unreasonable. This line will appear in almost every decision involving the 4th Amendment. The rest of the decision will explain why it doesn't apply. When it comes to search and seizure, the exceptions to the doctrine have completely overwhelmed the rule.
For a judge to come out on the wrong side of the equation is to risk personal ruination. Consider Southern District of New York Judge Harold Baer's 1996 ruling in Bayless.
After his decision was issued in late January, Judge Baer was widely criticized by public officials, including Mayor Rudolph W. Giuliani, as well as by radio talk show hosts and others, who said it was an example of a judiciary that cared more for the rights of criminals than for the rights of the public.
Much of the criticism focused on a comment he made about four men who the police said had dropped two duffel bags stuffed with $4 million worth of drugs in Ms. Bayless's trunk on April 21, 1995. The judge said he considered it reasonable and not suspicious for the men to flee when they saw police officers in Washington Heights, a neighborhood that he said was beset by police brutality and corruption.
"Had the men not run when the cops began to stare at them, it would have been unusual," he wrote, adding that the act of fleeing was not enough to justify police officers' pulling over the woman's car.
Calls for his impeachment came from all quarters, including the Clinton White House. Miraculously, the judge decided to revisit his ruling "in the interest of justice," and reversed himself, thus staving off his impending trial in the Senate. And that's how Judge Baer saved his future as a Supreme Court Justice. Or a Second Circuit Judge. Or still a district court judge with no future potential of ever being named to a higher bench.
Still, the occasional unlawful search and seizure will result in suppression. It happens. And it's those rare cases, those rare judges, who inexplicably yet boldly decide to honor the Constitution and rule in favor of the defendant despite all incentives to do otherwise, that make this area of criminal law so confounding.
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