NEGATIVE - SEARCH AND SEIZURE

NEGATIVE - SEARCH AND SEIZURE — SOLVENCY 438

PRIVACY APPROACH TO SEARCH AND SEIZURE IS NOT EFFECTIVE

A PUSH FOR LESS INTRUSIVE SEARCHES ACTUALLY DECREASES PRIVACY PROTECTIONS

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.1762

The increasing tendency, however, is to use the lesser intrusion on privacy as part of the justification for a government search that otherwise would not be allowed. n36 As a result, the Fourth Amendment's balancing factors of privacy and the government's need for the intrusion become viewed as dependent variables on a sliding scale: minimizing the level of the privacy intrusion can help compensate for a weaker government justification, such as one lacking individualized suspicion. n37 Used in this analytical fashion, the government's ability to intrude in a less physically intrusive manner does not promote privacy interests but actually undermines the overall right to be free from government surveillance by expanding the scope of acceptable intrusions. n38 A physical search of a person for evidence of drug use while on the job, which normally would require individualized suspicion, now becomes permissible if the government uses minimally intrusive means (at least in a physical sense), such as blood or urinalysis tests. n39 [*1763]

USING PRIVACY AS A CRITERIA HAS DECREASED FOURTH AMENDMENT RIGHTS

By making privacy the central factor in the Fourth Amendment's equation, therefore, the Court unwittingly introduced a factor that, over the long term, resulted in an overall decline in the Amendment's protections. This situation will only worsen as the inevitable march of government regulation further blurs the notion of what is private and as technological advances enable the government to invade privacy in more pervasive, but physically less intrusive, ways.

WEIGHING GOVERNMENTAL NEED VERSE INDIVIDUAL PRIVACY WILL PREVENT PRIVACY PROTECTION

Although the propriety of such deference under the Fourth Amendment can and will be criticized, n59 the point to be made here is that the inevitable long-term effect of importing the Madisonian dilemma into the Amendment through a balancing test was to shift control from the individual over the "facts" justifying the government's power to intrude (by not engaging in behavior giving rise to probable cause) to the government's ability to forge a "reasonable" policy justification. This shift in control will continue so long as the legal formula continues to be cast as a weighing of the government's policy judgment on the need for the intrusion, to which the Court will be deferential, against the individual's privacy interest, which, as was described earlier, is contracting.

A PLAN TO DEFER TO SUBPOENAS INSTEAD OF SEARCHES WOULD NOT PROTECT 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.1039-40

This argument has two serious flaws. First, a great deal of regulatory information gathering does not conform to the subpoena model. OSHA and EPA not only subpoena documents, they search targets' businesses as well. n77 Government employers search employees' desks and file cabinets; n78 school principals search students' lockers. n79 There is no privacy-based reason for treating these searches differently from police searches; the overbreadth phenomenon is the same in both settings. Even if the line between searches and subpoenas makes sense in privacy terms, it can only reduce privacy's substantive shadow, not eliminate it. The second flaw is more fundamental: the line is incoherent in privacy terms. The Boyd Court understood this - the Justices applied the full force of Fourth and Fifth Amendment protection to a subpoena for customs invoices - and nothing since Boyd has undermined its reasoning. The relevant privacy interest is the interest in keeping secret whatever the government is examining. The problem with a typical search is that the government's agent is examining whatever happens to be there, not just guns or cocaine. There may be no legitimate interest in keeping the guns or cocaine secret, n80 but the officer sees innocent (albeit potentially embarrassing) things as well. Hence the overbreadth concern. But subpoenas do not do away with this problem unless they seek only "guilty" information - which they don't. Subpoenas for financial records [*1040] or correspondence are common, and these documents can include a great deal of legitimately private information. Just as the police officer must search the whole car to find the hidden cocaine, the subpoena must demand a great deal of innocent-but-private material in order to turn up the "smoking gun" document.

USING PRIVACY AS A MEASURE OF THE FOURTH AMENDMENT HAS FAILED AND CANNOT BE JUSTIFIED IN THE FUTURE

The Fourth Amendment as a privacy-focused doctrine has not fared well with the changing times of an increasingly non-private world and a judicial reluctance to expand individual rights. These developments necessitate that critics of the Court's analysis provide new, stronger justifications for why these protections are essential not only to the individual but also to the community. Stated more provocatively, scholars must address why, in a world plagued by terrorism, drug cartels, and drive-by killings, the Court's definition of "unreasonable searches and seizures" should not give deference to heightened law enforcement needs and advanced technological approaches that permit broad government surveillance. Moreover, any alternative vision that hopes to be persuasive must recognize that the Court is not about to abandon its reliance on the Reasonableness Clause and completely reverse direction. It is far too late in the judicial day, and perhaps unwise, to call for a return to a Fourth Amendment analysis founded solely upon the Warrant Clause. If the only form in which the Fourth Amendment could apply to government intrusions was in the traditional Warrant Clause formulation of requiring a warrant based on probable cause, the Court likely would not have applied the Amendment to certain intrusions - the safety inspections at issue in Camara, for example - that now are covered by the Amendment. n65 [*1772] Consequently, the question that needs to be addressed in a post-Camara world is how the policy judgments are to be made where the Court's primary rubric is one of reasonableness and where notions of a warrant and probable cause must provide their own justification for applying to a government intrusion.

USING PRIVACY AS A MEASURE OF SEARCH AND SEIZURE LAW IS DIFFICULT BECAUSE OF NEW TECHNOLOGIES

The problem of how we use privacy to measure Fourth Amendment rights is compounded by technological advances that have enabled the government to invade privacy in a less physically intrusive manner. The Norman Rockwell scene of Officer Friendly patrolling Main Street while he whistles and twirls a nightstick has been replaced by drug-sniffing dogs, urinalysis spectrometers, unmanned drones, heat sensors, DNA testing, helicopter flyovers, and electronically tracked beepers. The question is whether such technological "advances" will be used to further privacy interests or to allow more incursions on the overall privacy of the citizenry.

RELIANCE ON PRIVACY AS THE CENTERPIECE OF SEARCH AND SEIZURE CREATES LESS PRIVACY PROTECTION

When used as a factual measure, reliance upon privacy as the centerpiece of Fourth Amendment rights actually creates the potential for less overall privacy protection. This is true most simply because as governmental and nongovernmental intrusions on privacy expand, the scope of what one reasonably expects to be private correspondingly becomes truncated. In other words, because the Court is not asking whether bank or phone records should be kept private (thus invoking privacy as a value), but, rather, whether we as a factual matter expect others to see and use those records n32 (thus viewing privacy as a measurable fact), Fourth [*1761] Amendment protections will shrink as our everyday expectations of privacy also diminish. n33

A BALANCING OF STATE NEED AND PRIVACY INTERESTS WOULD NOT AFFORD ANY REAL PRIVACY PROTECTION

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.

Thus, it is hard to see how any plausible balance of privacy interests and government need could yield both current levels of Fourth Amendment protection and current levels of regulatory discretion. The interest in regulation is probably weaker than the interest in criminal law enforcement. Excluding house searches and wiretaps, privacy interests are not obviously different in the two settings, or if they are, the difference cuts in the wrong direction. No consistent regime would both protect privacy interests in briefcases or trunks of cars or jacket pockets when the police wish to search those places and also ignore privacy interests in the sorts of information the government wants in other settings.

THE FOCUS ON PRIVACY IN CRIMINAL PROCEDURE TRADES OFF WITH OTHER INTRUSIONS OF 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.1017

These two assumptions cannot stand together. It seems easy and natural to say that we need to protect the individual's interest in keeping some things secret, or at least away from the government's prying eyes, when we regulate the police. Privacy is a comfortable starting point for Fourth and Fifth Amendment law. Yet much of what the modern state does outside of ordinary criminal investigation intrudes on privacy just as much as the kinds of police conduct that Fourth and Fifth Amendment law forbid. A privacy value robust enough to restrain the police should also prevent a great deal of government activity that we take for granted - activity that, at least since the New Deal, is unquestionably constitutional.

THERE MUST BE LESS FOCUS ON PRIVACY IN CRIMINAL PROCEDURE

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.1019

There are two ways to resolve the tension. The system could protect privacy consistently, across the board. But that course would entail serious costs to the constitutional order under which we have lived since the New Deal: tax forms, OSHA inspections, routine government employment practices, and a host of other things would be constitutionally suspect. The other alternative is to reorient criminal procedure, to focus the law less on privacy and more on what makes the police different from, and more threatening than, the government in its other guises. That task is already underway, though it is mostly implicit. It needs to proceed further, and more candidly. [*1020]

PRIVACY IS ALREADY LOST TO THE URBAN POOR. NEW LAWS WON'T HELP US

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

That task is harder than it sounds. If by "privacy" one means the interest in not being observed (seen or heard), it is impossible. The problem is that, in general, the harm from being observed declines steeply with the addition of each new observer. If my wife and I have conversations that we wish to share only with each other, it is a real injury to each of us for a third party to listen in. If we live in an apartment building where our neighbors hear all our conversations because the walls are so thin, the addition of one more pair of ears is not particularly harmful. The point is not that poor people don't care about privacy; they surely do. Rather, the point is that, much of the time, the police don't take privacy (in the Fourth Amendment sense of the word) away from poor people, because those people have already lost it, and one cannot lose it twice. However the law of police searches is defined, if its goal is to protect against the harm of being observed, it will give most of its protection to people who can afford lives that allow limited observation. That excludes the urban poor.

Note: the urban poor, not simply the poor. People who live outside cities tend to have cars whatever their income level. People in trailer parks live in places that afford almost as much privacy as detached houses. It is poor people in cities who tend to live in large apartment buildings, to travel by bus or subway, and because of a combination of income and concentrated population, to spend more time on the street than do people in other places. This urban-nonurban divide creates another divide. Poverty in America is not exclusively an urban phenomenon. Poverty among certain population groups in certain parts of the country is almost exclusively an urban phenomenon. Poor whites are dispersed; they do not live in close proximity to large numbers of other poor whites. n36 Poor blacks are more likely to live in cities, [*1273] surrounded by other poor blacks. n37 If the law is tilted against the urban poor, it is bound to have a racial tilt as well.