Fourth Amendment (Update)

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During the 1990s, the Supreme Court continued to confront the central issues of the Fourth Amendment's scope: what conduct is covered by the Amendment, what regulations apply to that conduct, and how those limitations are to be enforced.

Just as the Court had earlier taken a narrow view of what the word "searches" means in the Fourth Amendment, in recent years the Court has given the "seizures" term a limited construction, again confining within too narrow a compass those police activities subject to the Amendment's restrictions. Illustrative is Florida v. Bostick (1991), holding that the state court erred in finding a seizure occurred during a suspicionless bus sweep involving confrontation and interrogation of the passengers. The Court objected that the state decision inappropriately (1) used the Court's previous test of whether "a reasonable person would have believed that he was not free to leave," which the Justices deemed inapplicable to one who had no desire to leave the bus; and (2) treated the on-bus locale of the encounter as especially significant. But the Court's own analysis was flawed. When police undertake a bus sweep, they act with the obvious connivance of the common carrier to which bus travelers have entrusted their care, thereby creating a highly coercive situation unlike any contact that might occur between two private citizens, contrary to the more common forms of nonseizure police–citizen encounters.

This police dominance has a uniquely heavy impact on interstate bus travelers precisely because they do not, as a practical matter, have available the range of avoidance options that pedestrians might use. Abandoning one's journey by leaving the bus is not feasible, so that the passenger's only remaining privacy-protection option is obstinate refusal to respond to the officers' questions. But the dynamics of the situation make a nonconforming refusal to cooperate an unlikely choice, especially when it is considered that bus transportation is used largely by people with low incomes and little influence.

When the Court determines the "reasonableness" of conduct amounting to a search or seizure, typically it balances the individual's interests in privacy and security against society's interests. The latter interests are usually crime detection and sometimes crime prevention, but yet another is ensuring that police are not unduly endangered while carrying out their duties, as reflected in the rules governing search incident to an arrest and frisk incident to a stop. The Court's decisions in the 1990s, involving concern about police safety in other settings, highlight two competing considerations: (1) a risk of death or serious injury to police is less tolerable than a risk that some crimes will remain undetected, so that police authority to act in their own protection must generally be more broadly stated; and (2) general grants of authority to the police to act for their own protection are nonetheless undesirable when the contemplated activity is highly intrusive on individual privacy and freedom. The Court's efforts to thread a line between those two considerations are reflected in three decisions. Maryland v. Wilson (1997) held that passengers as well as drivers may be required to exit a vehicle incident to a traffic stop, because such minimal added intrusion is justified in the interest of the officer's safety. Richards v. Wisconsin (1997) rejected a state's blanket rule that police, for their own safety, could make a no-knock entry when they are executing a search warrant regarding a felony drug crime, because such a broad category "contains considerable overgeneralization." Maryland v. Buie (1990) considered protective sweeps incident to in-premises arrests. The Court deemed it necessary to create a two-pronged test whereby police were given automatic authority to look into "spaces immediately adjoining the place of arrest" but were required to show facts warranting reason to believe persons posing danger were present before undertaking a more extensive sweep.

One shining beacon in our Fourth Amendment history is the brilliant argument of james otis, jr. , against writs of assistance, when he railed against the "power that places the liberty of every man in the hands of every petty officer." These words are an apt description of one of the most pervasive law enforcement techniques of the 1990s: An officer stops a vehicle on the highway (often as a result of a selection process that takes into account nothing other than the driver's race) for an insignificant traffic violation that would not provoke any police response but for the officer's desire to determine (by a plain-view observation, a consent search, or summoning a drug-detection dog) whether the vehicle contains drugs. This practice raises the important question of whether the Fourth Amendment's "reasonableness" requirement necessitates only that there be some factual basis for the action taken (such as the traffic violation), or whether in addition it is necessary that the conduct not be arbitrary or pretextual. That question was answered in the traffic-stop case of Whren v. United States (1996), which may turn out to be the Court's most significant, and most unfortunate, Fourth Amendment decision of the 1990s. The Court in Whrenreached three startling conclusions: (1) the pretextual nature of a traffic stop, even if shown by the subjective motivation of the officer, and even when absent such motivation no Fourth Amendment intrusion would have been made, does not make the stop unreasonable, (2) a showing of a departure from usual practice, again producing an intrusion a reasonable police officer would not have made, also does not constitute a Fourth Amendment violation, and (3) there is no violation even when, as in Whren, the departure is clearly shown by a deviation from a police regulation limiting the circumstances in which Fourth Amendment intrusions are permissible.

Wayne R. La Fave

(see also: Search and Seizure; Unreasonable Search.)


La Fave, Wayne R. 1996 Search and Seizure: A Treatise on the Fourth Amendment, 3rd ed. Vols. 1–5. St. Paul, Minn.: West Publishing Co.

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Fourth Amendment (Update)

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