NEGATIVE - SEARCH AND SEIZURE

NEGATIVE - SEARCH AND SEIZURE — SIGNIFICANCE 437

PRIVACY CONCERNS IN SEARCH AND SEIZURE AND NOT SIGNIFICANT

THE ARGUMENT THAT PEOPLE NEED PRIVACY PROTECTED BECAUSE THE SYSTEM DOESN'T PROTECT THEM IS MISGUIDED AND FLAWED

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1044-45

This line of argument is powerful, but ultimately unsatisfying. It is powerful because the criminal justice system does indeed have class and race biases. Poor people and black people are more likely to be caught in its web than middle- or upper-class whites. n95 That gives rise to a classic Carolene Products n96 argument for special constitutional scrutiny. John Hart Ely made exactly that argument when justifying constitutional search and seizure law in political process terms, calling the Fourth Amendment a "harbinger of the Equal Protection Clause" and noting the "tremendous potential for the arbitrary or invidious infliction of "unusually' severe punishments on persons of various classes other than "our own.' " n97 On the other side of the fence, the classes of people most affected by the regulatory state do seem to have at least their share of political clout, so that one must stretch to make process arguments for special judicial protection for, say, taxpayers or the targets of EPA investigations. But the argument does not go far enough. In order to justify remedying the inadequate privacy protection afforded criminal suspects, one must first show that the protection offered by the political process is inadequate. Here as elsewhere, Ely's argument requires a substantive hook, a judgment that there is a problem worth fixing. In order to justify the phenomenon at issue here, that problem must be tied to privacy, to the interest in keeping secrets from the government. This is where the political process argument runs into trouble. Fourth and Fifth Amendment law do not simply replicate the privacy protection that people receive from the regulatory state. On the contrary, Fourth and Fifth Amendment law seems to give criminal suspects more privacy protection than ordinary citizens get from government employers, tax collection agencies, and the like. This is the puzzle that needs explaining: informational privacy is taken much more seriously when the police search drug suspects than when localities enforce building codes or the IRS audits tax returns. Constitutional law is not bringing the politically powerless up to the level of the powerful; in this limited sense, the powerless do better.

THE EXISTENCE OF THE EXCLUSIONARY RULE PROVES THE STATE FOCUS ON PRIVACY

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1073

Three serious obstacles stand in the way of these changes. The first and most obvious is remedial. Suppression of illegally obtained evidence, the primary tool for enforcing restrictions on the police, is well suited to rules about evidence gathering - rules that limit what the police can see. Suppression is less well suited to regulating police violence, because of the lack of a causal connection between unreasonable use of force and the discovery of incriminating evidence. (There was no evidence gathering in the Rodney King incident.) The existence of the exclusionary rule thus tends to reinforce Fourth Amendment law's emphasis on privacy.

PROTECTING PRIVACY DOES NOT PROTECT FOURTH AMENDMENT VALUES

Scott E. Sundby Professor of Law, Washington & Lee School of Law, "EVERYMAN" 'S FOURTH AMENDMENT: PRIVACY OR MUTUAL TRUST BETWEEN GOVERNMENT AND CITIZEN? Columbia Law Review, October, 1994, 94 Colum. L. Rev. 1751 , EE2001-JGM, P.1758

The argument that formulating Fourth Amendment interests in privacy terms has undermined the Amendment's protections initially may seem counterintuitive. One can easily imagine how a Court in a different time might have taken the ideal of the "right to be let alone" and defined privacy in a way that would have led to a very different Fourth Amendment jurisprudence than that which exists today. n27 However, a coalescence of different factors - social, doctrinal, analytical, and rhetorical - has prevented the vision underlying Justice Brandeis's words from coming to pass. The "right to be let alone" no longer is capable of fully protecting Fourth Amendment values.

PRIVACY PROTECTION IS UNACCEPTABLE IN MODERN SOCIETY

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1060

The common theme in these examples seems obvious. Where privacy protection would lead most directly to substantive constraint on government regulation, the law has abandoned all pretense of protecting privacy. That practice has worked, after a fashion: no one today worries about the substantive implications of search and seizure or self-incrimination law. But it leaves huge discontinuities within Fourth and Fifth Amendment doctrine - gaps that cannot be bridged within the existing legal framework. The reason for these discontinuities also seems obvious. The law is based on a principle - serious protection of informational privacy - that has implications we cannot tolerate. The substantive consequences of privacy protection may have been acceptable in Boyd's era (though not for long even then), but they are not acceptable now. Perhaps it is time to reconsider the protection.

BASING FOURTH AMENDMENT PROTECTIONS ON PRIVACY IS NOT RELEVANT IN THE MODERN WORLD

Perhaps most fundamentally, a Fourth Amendment based upon expectations of privacy must contend with the changing nature of modern society. The very notion of a right to be left alone seems a bit tattered once placed in the context of contemporary life. Justice Brandeis spoke of the Fourth Amendment as guarding against unjustifiable intrusions upon the private life of the individual in part out of a concern for encroaching technology. n28 Even Justice Brandeis, though, could not have fully envisioned the world of the 1990s, where the difference between public and private largely has become blurred. Technological and communication advances mean that much of everyday life is now recorded by someone somewhere, whether it be credit records, banking records, [*1759] phone records, tax records, or even what videos we rent. n29 We may want to be left alone, but we realistically do not expect it to happen in any complete sense. And perhaps it is worth noting that judges and legislators - the individuals who are primarily responsible for defining the boundary between public and private for the purposes of the Fourth Amendment - especially have seen what once were largely thought of as private affairs, like finances and marital matters, claimed as part of the public's "right to know." n30

THE ACADEMY AND THE COURTS VIEW CRIMINAL PROCEDURE AS SEPARATE FROM CONSTITUTIONAL LAW

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1016-7

The second assumption usually goes unspoken: criminal procedure, we all suppose, is a self-contained system. It has little or nothing to do with the rest of constitutional law. Constitutional law courses ignore Fourth and Fifth Amendment doctrine, and criminal procedure courses return the compliment; the literatures of criminal procedure and constitutional law do not speak to one another, n5 and the cases do not cite each other. There is a lot to argue about in Fourth and Fifth Amendment law, but the arguments seem to have no effect on debates about the scope of the government's power outside traditionally criminal areas.

THE LAW ON PRIVACY AND SEARCHES DOES NOT DEAL WITH CONCEPTS OF LIBERTY OR AUTONOMY

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1022

Two examples should suffice to make the point. The concept of "plain view" - the idea that the police are not subject to any Fourth Amendment constraint when they see something from a vantage point they are entitled to take (sometimes because any member of the public is entitled to the same vantage point) - is the centerpiece of search law. This concept basically defines what is a "search," n23 and hence defines what police conduct the Fourth Amendment regulates and what conduct it leaves alone. With respect to things that are searches, the plain view concept determines what must be separately justified. In short, it determines in an enormous number of cases whether the Fourth Amendment has or has not been obeyed. The concept makes sense only in terms of informational privacy. It flows out of the interest in keeping secrets, not out of the interest in being free from unreasonable police coercion or from other kinds of dignitary harms that search targets may suffer.

CURRENT PRIVACY LAW FOCUS ON PRIVACY AS SECRECY

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1021-2

Both sorts of privacy are protected in criminal procedure: Fourth Amendment law regulates both wiretaps and arrests. And the two often go together: house searches, the heart of Fourth Amendment concern, involve both types of injury. But the interests are neither equally important to the law nor equally well protected. On the contrary, informational privacy - privacy as nondisclosure - is and has been preeminent. When courts decide whether a given police tactic infringed a "reasonable expectation of privacy" and hence whether the tactic is a "search" subject to Fourth Amendment regulation, they ask whether the police saw or heard something that any member of the public might have seen or heard in a similar manner. n21 The question, in other words, is whether what the police did was likely to capture something secret. [*1022] The reasoning of the cases is far from consistent; neither this norm nor any other can fully explain the doctrine. Nevertheless, privacy-as-secrecy dominates the case law. n22

PRIVACY IS NOT VIEWED AS AN ABSOLUTE RIGHT BUT A QUANTIFIABLE FACT

The fact that it has become increasingly difficult to find a Walden Pond or "bee-loud glade" in today's world does not mean that privacy no longer has a role within the Fourth Amendment; indeed, it may support [*1760] all the more an argument for a stronger Amendment to protect what enclaves of privacy are left. But this requires thinking of privacy in general, abstract value terms, such that everyone, including the Court, would agree that "privacy" is a cherished principle. n31 However, under the Court's current Fourth Amendment formulaic approach, privacy is not invoked as an overarching value but rather is used as a specific fact to assess whether and how the Fourth Amendment should apply to a given intrusion. Such an approach asks, for example, whether the individual has a "reasonable expectation of privacy" in a particular activity, and, if so, whether the government's need outweighs the scope of the privacy intrusion. Privacy is thus treated as a quantifiable fact that can be used to help resolve concrete legal disputes.

THE LAW HAS GRADED PROTECTIONS FOR INDIVIDUAL PRIVACY

William J. Stuntz, Professor, University of Virginia School of Law, SYMPOSIUM: PRIVACY IN THE CRIMINAL CONTEXT: PANEL IV The Distribution of Fourth Amendment Privacy, George Washington Law Review , June / August, 1999, 67 Geo. Wash. L. Rev. 1265, EE2001-JGM

Fourth Amendment law protects individual privacy, when it does so, by barring the police from seeing or hearing certain things in certain ways unless they have a sufficiently good reason. In general, the more harm to privacy the investigative tactic causes, the better the reason must be. Thus, police officers can see behavior on the street with no justification at all; n1 they can inspect a pedestrian's jacket pocket based on reasonable suspicion that the pocket might contain a weapon coupled with reasonable suspicion of some criminal activity; n2 they can conduct a thorough search of a car only given probable cause to believe the car contains evidence of crime (a higher standard than reasonable suspicion); n3 they can search a private home only if they have both probable cause and a warrant obtained in advance of the search. n4 It seems plausible to assume that houses are more private than cars, which are more private than jacket pockets, which are more private than public movements on the street. If so, the law affords a kind of graded protection to individual privacy.