NEGATIVE - SEARCH AND SEIZURE

NEGATIVE - SEARCH AND SEIZURE — DISADVANTGE 440

PRIVACY APPROACH TO SEARCH AND SEIZURE WOULD LEAD TO RACIST AND CLASSIST LAW ENFORCEMENT

FOCUS ON PROTECTING PRIVACY WITH THE FOURTH AMENDMENT LEADS TO RACIST AND CLASSIST LAW ENFORCEMENT

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

These obvious propositions may be wrong. Begin with the central problem of late-twentieth-century American criminal justice: it seems biased, both against the poor and against blacks. Between 1980 and 1992, the fraction of defendants who received appointed counsel went from just under half to four-fifths. n6 Although this is not a precise measure of the proportion of [*1266] poor defendants, it is at least suggestive. In the early 1970s, the ratio of white to black inmates was approximately three to two; today blacks outnumber whites. n7 This shift coincided with an unparalleled growth in the inmate population, from about 325,000 in 1970 to over 1.8 million in 1998. n8 These are complex phenomena; contrary to much of the rhetoric about them, they are not primarily the product of simple bigotry or malice. Some portion of these phenomena may even reflect improvements in the quality of law enforcement. But these numbers do suggest a system ever more focused on, and ever more punitive toward, the crimes of poor people and black people. Even if that focus is to some degree justified - punishing criminals creates benefits as well as costs for the communities from which the criminals come - it must send some destructive messages to residents of communities that see a large fraction of their young men imprisoned, a fate that remains rare for residents of other sorts of communities. It would be foolish, perhaps reprehensible, for a society with patterns of criminal punishment like these not to worry a great deal about the distributive effects of the rules and practices of its criminal justice system. If so, we should worry about Fourth Amendment law, and in particular the way that law defines and protects privacy. Fourth Amendment law makes wealthier suspects better off than they otherwise would be, and may make poorer suspects worse off. And Fourth Amendment law heightens the tendency of the police to target the kinds of drug markets that prevail in poor black neighborhoods. These tendencies operate at the margin; their precise effects are unknown, and probably unknowable. Still, it is plausible to believe that Fourth Amendment law has contributed to the creation of a prison population increasingly dominated by blacks punished for crack offenses.

PRIVACY IS MOST LIKELY TO EXIST ONLY IN THE RICH WHITE WORLD

Fourth Amendment law has these tendencies for two reasons. The first goes to the nature of the interest being protected. Privacy, in Fourth Amendment terms, is something that exists only in certain types of spaces; not surprisingly, the law protects it only where it exists. Rich people have more access to those spaces than poor people; they therefore enjoy more legal protection. That is not true of some other interests Fourth Amendment law protects. [*1267] Thus, to the extent the law focuses on privacy rather than, say, the interest in avoiding police harassment or discrimination, it shifts something valuable - legal protection - from poorer suspects to wealthier ones.

PRIVACY WILL SIMPLY GO TO THE HIGHEST BIDDER

In Fourth Amendment law, privacy has a positive definition: the kind of privacy protection citizens have vis-a-vis the police is tied to the kind of privacy the same citizens have with one another. That kind of privacy can be bought, so that people who have money have more of it than people who don't. It follows that people who have money have more Fourth Amendment protection than people who don't. One might solve this problem by giving privacy a normative definition, by deciding what privacy protection people ought to have vis-a-vis the government, without regard to the distribution of privacy in society. But the solution works only if one fundamentally changes what one means by "privacy." Under any definition that focuses on [*1268] the interest in keeping certain spaces and activities secret, protecting privacy will tend to advantage wealthier suspects at the expense of poorer ones.

PRIVACY FOLLOWS SPACE AND SPACE FOLLOWS MONEY

Perhaps because they are good generalizations, they have a substantial class bias. Consider how Fourth Amendment protection works in four major spheres: home, job, car, and street. Save for a small homeless population, rich and poor alike have homes. But the homes of the rich are larger and more comfortable, making it possible to live a larger portion of life in them. Privacy follows space, and people with money have more space than people without. People with more money are more likely to live in detached houses with yards; people with less money are more likely to live in apartment buildings with common hallways. Because others can hear (sometimes smell) from the hallway what goes on inside apartments, the police can too. My neighbors cannot freely surround my house to hear what is happening inside; consequently, neither can the police. The open fields doctrine reduces this gap slightly, by allowing the police to walk about on large tracts of privately owned land without any Fourth Amendment justification. n29 But the reduction is slight, for open fields are just that - fields, not yards.

PRIVACY PROTECTION WON'T APPLY TO URBAN LOWER TO MIDDLE CLASS CITIZENS

Which leads to the fourth sphere, the street. As with transport, there are two divides here: between cities and everyplace else, and between richer and poorer. Street life is mostly an urban phenomenon. It is also mostly a phenomenon of the lower and lower-middle classes. Again, poorer people have less comfortable homes; it is natural to want to spend less time, and do less, in them. Other forms of entertainment are more costly than sitting on a front stoop or wandering the streets and talking to friends. So among urban residential neighborhoods, one finds more pedestrian traffic in poorer neighborhoods than in wealthier ones. And Fourth Amendment law makes it easy for police to stop and search pedestrians. Police can approach anyone and ask questions with no justification at all; as long as the encounter is no more coercive than any police-citizen encounter must be, it is deemed consensual, notwithstanding the fact that such conversations rarely seem optional to the suspect. n33 That power is terribly important, for it gives the police the authority to initiate street encounters at will. The Supreme Court's decision in Whren v. United States n34 has attracted a lot of criticism, because it permits the police to use traffic violations as a justification for stopping cars when the real reason for the stop lies elsewhere. n35 Traffic violations are sufficiently common that, if this authority were used widely enough, automobile stops could become effectively unregulated. In an odd way, Whren shows how broad police authority over pedestrians is, for Whren does no more than narrow the gap between Fourth Amendment protection for drivers and the rules for police-pedestrian encounters. [*1272] The police can, after all, already "stop" pedestrians without cause, given that every street encounter is functionally a stop.

FOURTH AMENDMENT PRIVACY IS UNEQUALLY DISTRIBUTED TO THE RICH

The general picture is clear enough. Fourth Amendment privacy is unequally distributed; it more closely resembles the right to buy political advertisements, which is useful only to those with money, than the right to vote, which almost all adult citizens share. Privacy, as Fourth Amendment law defines it, is something people tend to have a lot of only when they also have a lot of other things.

THE POLICE VIOLATE PRIVACY IN POOR NEIGHBORHOODS BUT THE POOR NEVER RECEIVE PROTECTION FROM NEW LAWS

The gist of the last section is this: The police are subject to different standards when they search people in different kinds of neighborhoods. In one kind of neighborhood, police investigations involve entry into houses, cars, and offices; in another, apartments, buses, and shop floors. In the first kind of neighborhood, street encounters are not very useful to the police, because little street traffic exists. In the second kind, street traffic and hence police-citizen encounters on the street are much more common. The law is formally the same for everyone, but a little prodding exposes a serious wealth effect in the degree of privacy protection it provides. That ought to sound troubling enough, but the problem is actually worse. Notwithstanding the crime drop of the past eight years, we live in a high-crime society. In a high-crime society, police cannot seriously investigate all offenses; they must pick and choose. Anything that makes one set of crimes more expensive makes another set cheaper: the cost that matters most is relative. That holds especially true in a society that invests heavily in policing drug markets. The nature of those markets is such that, in well-off neighborhoods, transactions are likely to take place in private dwellings through arranged meetings; in poorer neighborhoods, transactions take place on the street. Fourth Amendment law makes it much harder to police the former, and thereby pushes police to focus ever more on the latter.