NEGATIVE - SEARCH AND SEIZURE

NEGATIVE - SEARCH AND SEIZURE — DISADVANTAGE 441

PRIVACY APPROACH TO SEARCH AND SEIZURE WOULD LEAD TO POLICE MISCONDUCT

PRIVACY BASED SEARCH AND SEIZURE PROTECTION LEADS TO WORSE COERCION FROM LOCAL POLICE

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 tendencies affect the police, not necessarily prosecutors. And the argument applies to local law enforcement, not to its federal counterpart. Federal law enforcers deals with a different mix of crimes and a very different set of political and resource constraints than do local police; the differences mean that Fourth Amendment law probably has little to do with how federal agents allocate their time and energy. The argument offered here may have federalism implications, but for now it is enough to say that (1) Fourth Amendment law's dominant audience is local police, (2) local police are the dominant enforcers of criminal law, and (3) Fourth Amendment law may steer local police in some bad directions when allocating criminal law enforcement.

PRIVACY BASED RESTRICTIONS ON POLICE ONLY ENCOURAGE MORE HEINOUS POLICE TACTICS

The second reason is probably more important. When the Fourth Amendment limits the use of a police tactic like house searches, it does two things: it raises the cost of using that tactic, and it lowers the relative cost of using other tactics that might be substitutes. Different kinds of crimes require different kinds of police tactics to ferret them out. Raising the cost of some tactics and lowering the cost of others thus means raising the cost of investigating some kinds of crimes and lowering the cost of investigating others. Different crimes are committed by different classes of criminals. As it happens, the kinds of crimes wealthier people tend to commit require greater invasions of privacy by the police to catch perpetrators. By raising the cost of the tactics that most intrude on privacy, Fourth Amendment law lowers the cost of other tactics, and those are the tactics that are most useful in uncovering the crimes of the poor.

FOCUS ON PRIVACY IN SEARCHES ALLOWS MORE INSTANCES OF POLICE COERCION

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.1076-77

Regulation may still be the right move. Community policing may be a bad idea. Still, this tension highlights something important. A large category of reasonable exercises of police coercion - "reasonable" in the sense that given full information, a large majority of people across all major population groups would approve of [*1077] the police conduct - may not be cost-effective in a system of case-by-case judicial scrutiny. The system may have to choose between foreclosing all such police conduct or permitting it at the cost of also permitting a good deal of misconduct, such as harassing citizens because of their race. Racism combined with broad police discretion was, after all, what prompted courts to invalidate vagrancy and loitering laws in the first place. The current regime manages to suppress these issues, by focusing attention on suspects' privacy interests and adopting a fictive view of consent that allows a good deal of informal coercion to take place. But this "solution" satisfies no one. Notwithstanding consent search doctrine, the police lack the kind of informal authority that the old regime gave them - the kind of authority that may be essential to effective community policing. Meanwhile, the system does not come close to protecting the interests of people like Terry or Jimeno in being free from police coercion.

FOCUS ON PROTECTING PRIVACY IN POLICE SEARCHES DIVERTS ATTENTION FROM POLICE VIOLENCE AND COERCION

WILLIAM J. STUNTZ , Visiting Professor, Yale Law School; SYMPOSIUM: Justice and the Criminal Justice System, The Fifteenth Annual National Student Federalist Society Symposium on Law and Public Policy -- 1996: PANEL III: WHAT BELONGS IN A CRIMINAL TRIAL: THE ROLE OF EXCLUSIONARY RULES: THE VIRTUES AND VICES OF THE EXCLUSIONARY RULE , Harvard Journal of Law & Public Policy , 20 Harv. J.L. & Pub. Pol'y 443 , Winter, 1997 , EE2001-JGM, P.

The standard attack on the exclusionary rule rests on an undeniable fact: the rule lets criminals walk away from the courthouse. The fact is true enough, but the standard attack is wrong. Seen purely as a remedy for a right whose scope is fixed, the exclusionary rule is enormously successful, and its public nature -- the fact that we all can see the drug dealer who walks away -- may well be part of its success. This is not to say that the rule has no downside. On the contrary, the rule may do serious damage to the criminal justice system. But the damage is not located where the critics say it is. Indeed, the rule's two biggest vices are mostly ignored in the vast literature on this subject.

Those vices both have to do with the exclusionary rule's ripple effects, and its tendency to change other aspects of the system for the worse. The first bears on the content of Fourth Amendment law, for that law is not fixed, and in this setting the remedy tends to shape the right. In part because of the exclusionary rule, we have an enormous body of law that regulates the police. Also in part because of the exclusionary rule, that law focuses heavily on what sorts of things police officers can see; it pays much less attention to the ways and settings in which police officers use force on suspects. This is a bad thing if, as is probably the case, police violence is a more serious problem than police snooping.

DISCOURSE ON PRIVACY CONCERNS STOPS DISCOURSE ON POLICE COERCION

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.1066

The premise of current doctrine is otherwise. One who studies the law of criminal investigation cannot help wondering at the chasm between the mass of rules and regulations governing where the police can look and what they can touch when they look there, and the virtual absence of any constitutional constraint on when police can strike a suspect. n182 Of course, looking in jacket pockets implicates the interest in keeping secrets, while grabbing suspects, spinning them around, and holding them at gunpoint does not. So at one level the law is easy to explain. It looks primarily to privacy, the backbone of Fourth Amendment doctrine. But in terms of ordinary people's valuation of their own interests, the privacy interest is dwarfed by the interest in avoiding unnecessary violence or the unreasonable exercise of police coercion. All our talk about privacy may have had the effect of stunting constitutional conversation about those more serious problems.

PRIVACY PROTECTION SHIELDS PHYSICAL ABUSE BY THE POLICE

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

In other words, privacy protection is more than just a remedy in criminal procedure; it is the heart of the liability rule. For the most part, the law does not suppress evidence when the police have behaved too coercively. It suppresses evidence when the police have seen and heard things they were not supposed to see and hear. Coercion matters in the law of criminal procedure, but privacy matters more. That is the heart of the conflict: in criminal procedure, the law worries a great deal about what the government is and is not supposed to see; elsewhere, the government can see just about anything it wants.

PRIVACY PROTECTION DOESN'T OVERREGULATE THE POLICE IT UNDERREGULATES THEM

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

Criminal procedure's focus on privacy has costs that go beyond the lack of analytic tidiness. The cost is not that the police are overregulated, though in some respects they are. On the contrary, the exaltation of privacy in criminal procedure has left the police underregulated, by focusing attention on the least serious injuries that police misconduct can cause. To understand why, one must look at the differences between the sorts of police investigation that infringe on privacy the most and the police tactics that are the most common subjects of constitutional regulation.

FOCUSING ON PRIVACY IS WRONG. MUST FOCUS ON POLICE VIOLENCE

This focus on privacy rather than police coercion and violence is usually taken for granted, but there is nothing at all inevitable about it, and it is probably a bad thing. The language of the Fourth Amendment bars "unreasonable" searches. n4 Nothing in that language requires that reasonableness turn on what the officer saw and what he knew when he saw it, rather than the level of force he used in carrying out his job. And in a world in which we take other sorts of government snooping quite for granted (think about tax forms), there is something a little odd about the strength of the protection given to the privacy interest in paper bags and jacket pockets. That interest cannot be stronger than the interest in regulating police violence -- an interest that the exclusionary rule tends to suppress.

THE FOCUS ON PRIVACY AS LITTLE EFFECT ON HEINOUS POLICE MISCONDUCT

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.1076

The law's relentless focus on privacy as secrecy has produced this state of affairs, because privacy protection has little to do with the worst aspects of police misconduct. And in a broader sense, privacy protection as the centerpiece of criminal procedure is reactionary: it harks back to a constitutional order that placed severe limits on the size and regulatory power of the state, limits that have long since been discarded. This doctrinal wrong turn may be the product of historical accident. The Supreme Court's decision to intervene heavily in criminal procedure was coupled with the decision to incorporate the Fourth, Fifth, and Sixth Amendments into the Fourteenth Amendment's Due Process Clause. At the time, Fourth and Fifth Amendment law was strongly linked to privacy protection, a product of Boyd-era cases. Yet that privacy protection had already been cabined and undermined in order to avoid running afoul of the emerging regulatory state. The incorporation cases of the 1960s thus imported privacy's problem into the day-to-day law of criminal procedure, the law that governs ordinary car stops and arrests. n221 We have been wrestling with the problem ever since. The result is a system that does not consistently protect privacy because it cannot, and hardly protects other interests at all. Criminal procedure needs reorienting.

LAW PROTECTS AGAINST SMALL SEARCHES BUT NOT POLICE VIOLENCE DURING A SEARCH

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.1043

This line of argument may be the strongest response to the claim that criminal procedure is out of sync with the rest of constitutional law. Current Fourth Amendment law does tend to protect privacy primarily where there is some danger of police coercion, which suggests that privacy language could be a screen for something else. Yet when police coercion is a potential problem, the law still protects privacy, not the freedom from unreasonable coercion. The focus is still on what the police officer saw and what justification he had for seeing it, not on how much force he used and whether it was reasonable under the circumstances. The Supreme Court penalizes an officer for turning over a stereo turntable to look at a serial number without sufficient cause, n88 but the same Court ignores unprovoked police violence during the course of an otherwise legal search of a private home. n89 The law requires more of a justification for searching a suspect's pockets than for grabbing him, spinning him around, and shoving him against the wall of a building. n90

THE FOURTH AMENDMENT SHOULD BE USED TO PROTECT US FROM POLICE NOT PROTECT OUR PRIVACY

Privacy is a good and important thing; infringing it is bad. Perhaps that is enough reason to have a Fourth Amendment whose chief purpose is to protect privacy. But the Fourth Amendment is the primary source of legal regulation of the police, and in our time and place privacy is a very strange thing to focus on when regulating the police. The targets of police searches and seizures tend to be relatively poor. Privacy is an interest whose importance grows with one's bank account, or one's square footage. Partly because most suspects are poor, most searches and seizures take place on the street, far from the world of bedroom closets and telephone conversations. Privacy is not much at stake in street encounters, so Fourth Amendment law has little to do with those encounters. Which means Fourth Amendment law, the body of law that most regulates the police, regulates very little when it comes to what the police do most. There is something very wrong with this picture. As it is currently structured, Fourth Amendment law focuses its attention on an interest that is at the periphery of policing, not at the core. It focuses its protection on people who, it would seem, can likely protect themselves reasonably well without the need of judicial intervention. In the process, it may make another set of people, people who cannot so easily protect themselves against police abuse, worse off. It is hard to see how this can be a good state of affairs.

All of which suggests that Fourth Amendment law protects the wrong people because it protects the wrong interest. Perhaps it is time to think about search and seizure cases not in terms of the strength of different defendants' privacy interests, but in terms of the kinds of interests that matter most to the kinds of suspects police target most. That might mean less constitutional regulation - orienting search and seizure law around police coercion and harassment would be hard, and developing workable rules might be impossible. At the least, it would mean less protection for middle-class homeowners. But then, less constitutional regulation might not be a bad thing, given that constitutional regulation does not seem to be advancing the cause of fairer, and more fairly distributed, policing. And in a criminal justice system like ours, protecting middle-class homeowners hardly seems like a priority.

THE GOVERNMENT WILL ALWAYS WIN BATTLES OF COMPETING PRIVACY RIGHTS

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.1763

One can see the potential clash of rights in the Fourth Amendment area as individual claims of privacy increasingly are met by "countertalk" of a right to be free from crime. n46 And if resolving a clash of rights is simply a playing of each actor's rights card and deciding which right is more valuable, the government's card representing the citizenry's "right" to safety almost always will outweigh an individual's claim of a right to privacy, especially where the intrusion can be characterized as minimal. Consider, for example, how the rights cards compare when debating sobriety checkpoints: which right is greater, society's right to safe highways through the use of sobriety checkpoints or a right to be free from a brief thirty-second encounter with the police? Cast in this way, (and one can make the comparison even more skewed by suggesting that the individual's claimed right is in fact founded upon the "privilege" of driving), little doubt can exist as to which rights card will triumph.

The lesson for those concerned with Fourth Amendment protections is that playing the rights game as currently defined is bound to be a losing proposition except in the most egregious cases. I do not mean to say that individual liberties are no longer cherished principles, but simply that the dialogue is changing and that a claim that one has a right is the beginning and not the end of the legal conversation. n47 Whether captured in the gentler rubric of communitarianism or the more strident tones of a political argument that too many rights exist, the undeniable message is that those calling for greater protection of a "right" had better be prepared to explain how the protection benefits not only the individual claimant but all of society.