Fourth Amendment Commons^™

The Search And Seizure Exclusionary Rule, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guaranty is not self-executing, however, and the courts and criminal justice systems in this country have long been bedeviled by questions concerning appropriate methods of ensuring its observance. As a result of the Supreme Court's decisions in Weeks v. United States and Mapp v. Ohio, the method principally relied upon today is a judicially created rule excluding from criminal trials evidence obtained in violation of the defendant's fourth amendment rights.

The search and seizure …

Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy

Michigan Law Review

The article will consider four different types of police-obtained evidence: evidence obtained from an unconstitutional search and seizure, evidence obtained from a Miranda violation, confessions and lineup identifications obtained in violation of the sixth amendment right to counsel, and coerced confessions. My conclusions are that evidence obtained from an unconstitutional search and seizure is excluded because of the police misconduct by which it was obtained. On the other hand, evidence obtained from a Miranda violation is (or ought to be) excluded because use of that evidence compromises the defendant's procedural right not to be compelled to be a witness against …

Police Liability For Creating The Need To Use Deadly Force In Self-Defense, Frank G. Zarb Jr.

Michigan Law Review

Police officers are granted wide discretion in the use of their firearms. Allowing officers some discretion is unavoidable, because they must often make difficult decisions in the face of rapidly changing circumstances. Officers, however, may abuse this discretion and cause injury or death unnecessarily. In the face of this danger of abuse by officers, suspects are, in many states, prohibited from defending themselves. While it is better to have a court decide when a police officer has abused his discretion than to allow the suspect to make that decision at the moment of arrest, it is not clear what standards …

Judicial Criticism, James Boyd White

Book Chapters

Today I shall talk about the criticism of judicial opinions, especially of constitutional opinions. This may at first seem to have rather little to do with our larger topic, "The Constitution and Human Values," but I hope that by the end I will be seen to be talking about that subject too. In fact I hope to show that in what I call our "criticism," our "values" are defined and made actual in most important ways.

I will begin with a double quotation. I recently heard my friend and colleague Alton Becker, who writes about language and culture, begin a …

'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar

Articles

It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

Articles

Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …

School Metal Detector Searches And The Fourth Amendment: An Empirical Study, Myrna G. Baskin, Laura M. Thomas

University of Michigan Journal of Law Reform

This Note is an empirical study of the weapons searches in the Detroit public schools. Part I traces the history of the Detroit public school searches describes how the searches were conducted, and explains the procedure implemented when a student was arrested or detained. Part II addresses the constitutionality of the search policy and concludes that the current sweep procedure violates the fourth amendment. Part III suggests a number of constitutional, and more effective, methods to decrease the number of weapons and the amount of violence in the Detroit high schools.

Arrest, James Boyd White

Book Chapters

The constitutional law of arrest governs every occasion on which a government officer interferes with an individual’s freedom, from full-scale custodial arrests at one end of the spectrum to momentary detentions at the other. Its essential principle is that a court, not a police officer or other executive official, shall ultimately decide whether a particular interference with the liberty of an individual is justified. The court may make this judgment either before an arrest, when the police seek a judicial warrant authorizing it, or shortly after an arrest without a warrant, in a hearing held expressly for that purpose. The …

Two Models Of The Fourth Amendment, Craig M. Bradley

Michigan Law Review

Fourth amendment critics rank in rows, and it has been repeatedly pointed out that individual cases are inconsistent with each other or that whole chunks of doctrine, such as the automobile exception or the plain view exception, are either misconceived, too broad, or too narrow. But these critics all play the Court on its own field, simply arguing as tenth Justices that the doctrines should be tinkered with in different ways than the Court has done. This Article, in contrast, suggests that current fourth amendment law, complete with the constant tinkering which it necessarily entails, should be abandoned altogether. Instead, …

Rejoinder: Truth, Justice, And The American Way--Or Professor Haddad's "Hard Choices", John M. Burkoff

University of Michigan Journal of Law Reform

I frankly think that Professor Haddad's response to my article on pretext searches is first-rate. It is articulate; it is thoughtful and scholarly; it sharpens the issues and the analysis in this area; and, for the most part, I think his criticisms of various portions of my own work present my positions fairly and honestly. On the other hand, I think that Professor Haddad is dead wrong.

Pretextual Fourth Amendment Activity: Another Viewpoint, James B. Haddad

University of Michigan Journal of Law Reform

Pretextual detentions, arrests, and searches pose knotty fourth amendment problems. With an air of plausibility, defense attorneys often accuse police of pretextual use of arrest warrants, search warrants, and various exceptions to the warrant requirement. Specifically, they contend that officers have utilized a particular fourth amendment doctrine to obtain certain evidence even though courts have not assigned as a reason for approving the doctrine the need to discover such evidence.

"Seizures" Typology: Classifying Detentions Of The Person To Resolve Warrant, Grounds, And Search Issues, Wayne R. Lafave

University of Michigan Journal of Law Reform

This seizures typology constitutes a most important part of extant fourth amendment doctrine. The precision with which and perspective from which such classifications are drawn is obviously a matter of considerable interest to the police, who must in the first instance resolve these warrant, grounds, and search issues. It is also an appropriate subject of broader concern, as the shape of these categories has a critical bearing upon the effectiveness of our law enforcement processes and the extent of our protected liberty and privacy. The following comments are directed to this seizures typology.

The Pretext Search Doctrine: Now You See It, Now You Don't, John M. Burkoff

University of Michigan Journal of Law Reform

One can only hope, to put it bluntly, that the Supreme Court majority in Villamonte-Marquez did not mean what it seemed to have said. Indeed, there is some evidence that this is precisely the case. In the same Term Villamonte-Marquez was decided, the Court also decided Texas v. Brown. In Brown, the Supreme Court continued to recognize and respond to the problem of pretext searches. In other words, the Court still acts as if the pretext search doctrine remains vital, despite the apparent body blow delivered to it in Scott and Villamonte-Marquez. The remainder of this Article …

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

Articles

Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

Probable Cause And Common Sense: A Reply To The Critics Of Illinois V. Gates, Joseph D. Grano

University of Michigan Journal of Law Reform

Part I of this article reviews Gates's actual holding. Although one can view much of the Court's more interesting discussion of the two-pronged test as dicta, the majority and dissenters clearly did not regard it as such. The majority and dissenters disagreed, however, not only over the appropriate hearsay test but, more fundamentally, over the nature of probable cause itself. I will argue that one must resolve this more basic disagreement before properly addressing the hearsay issue.

Part II examines probable cause from an historical perspective. In this part, I attempt to demonstrate that both the English common law …

The Applicability Of Miranda Warnings To Non-Felony Offenses: Is The Proper Standard "Custodial Interrogation" Or "Severity Of The Offense"?, Kenneth W. Gaul

University of Michigan Journal of Law Reform

This Note argues that the proper standard for determining the necessity of the Miranda warnings for any offense is the existence of custodial interrogation. When interrogation for non-felony offenses takes place in a custodial atmosphere, Miranda warnings should be required, as they are for more serious offenses. Part I summarizes the two basic approaches taken by courts that have confronted the question of the applicability of the Miranda warnings to non-felony offenses. Part Ill argues that neither the rationale for the Miranda doctrine nor the roots of the fifth amendment support a distinction based on the severity of the offense …

The Fourth Amendment And The Control Of Police Discretion, William J. Mertens

University of Michigan Journal of Law Reform

The fourth amendment protects the security of people's "persons, houses, papers, and effects" in two distinct (if overlapping) ways. First, it requires a sufficiently weighty public interest before the government's agents are allowed to search or seize. Thus, for example, probable cause is required for arrest. Whatever uncertainty there may be in the phrase "probable cause" (and, for that matter, however indefinite the idea of "arrest" may have become), in this context, at least, the probable cause standard requires the demonstration of objective facts that point with some probability to the guilt for some particular offense of the person arrested. …

Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar

Articles

Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …

"Knock, Knock" Is No Joke: Announcement Rules For Business Premises, Michigan Law Review

Michigan Law Review

This Note argues that the courts should reject a home-business distinction in the application of announcement requirements. The Note concludes that announcement rules should apply whenever their underlying policies are served. This approach would apply announcement requirements to closed and occupied business premises.

Part I examines the arguments offered by some courts for a restrictive interpretation of announcement protections in the business context. Part I suggests that these arguments are unpersuasive and that the courts' application of announcement rules should correspond to the policies behind them. Part II argues that the policy justifications for announcement are served in the business …

Forgotten Points In The "Exclusionary Rule" Debate, James Boyd White

Michigan Law Review

Most contemporary discussions of the "exclusionary rule" assume or assert that this "rule" is not part of the fourth amendment, nor required by its terms, but is rather a judicial "remedy" that was fashioned to protect those rights (against unreasonable search and seizure) that actually are granted by the fourth amendment. The protection is said to work by "deterring" official violations; this is, however, an odd use of the word, for the rule does not punish violations but merely deprives the government of some of the benefits that might ensue from them, namely the use in the criminal case of …

The Fourth Amendment As A Device For Protecting The Innocent, Arnold H. Loewy

Michigan Law Review

Part I of this Article establishes that the government has a right to search for and seize evidence of crime. Part II develops the corollary proposition that the fourth amendment does not protect the right to secrete evidence of crime. Part III explores the impact of the reasonable expectation of privacy concept on the innocent. Part IV evaluates consent searches and their effect on the innocent. Finally, Part V considers the exclusionary rule as a device for protecting the innocent.

Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar

Articles

[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has …

The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?), And Police Investigatory Practices, Yale Kamisar

Book Chapters

In one sense the Warren Court's "revolution" in American criminal procedure may be said to. have been launched by the 1956 case of Griffin v. Illinois (establishing an indigent criminal defendant's right to a free transcript on appeal, at least under certain circumstances) and to have been significantly advanced by two 1963 cases: Gideon v. Wainwright (entitling an indigent defendant to free counsel, at least in serious criminal cases) and Douglas v. California (requiring a state to provide an indigent with counsel on his first appeal from a criminal conviction). But these were not the cases that plunged the Warren …

Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

Book Chapters

Richard Nixon's criticism of the Warren Court during the 1968 presidential campaign centered largely on the Court's handling of cases involving criminal rights. According to candidate Nixon, the Court had gone much too far. It had twisted the Constitution to serve its own purposes, created a maze of legal technicalities that worked only to frustrate legitimate law enforcement efforts, and so weakened "the peace forces as against the criminal forces in this country" as to be largely responsible for the sharp rise in crime that had occurred in the sixties. What had to be done, continued Nixon, was to appoint …

Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review

Michigan Law Review

Part I briefly identifies the considerations underlying the Stone Court's decision to limit habeas corpus review of fourth amendment claims. Part II then argues against applying Stone to the sixth amendment claim. After establishing the analytic difference between the two constitutional claims and examining Stone's "opportunity for full and fair litigation" standard, it concludes that Stone is fully consistent with free review of habeas corpus petitions alleging incompetent handling of fourth amendment questions. Finally, responding to a popular interpretation of Stone, Part II demonstrates that the possibility that ineffectiveness claims may not further the determination of a defendant's …

Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar

Articles

Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

Articles

Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

Confessions And The Court, Stephen J. Schulhofer

Michigan Law Review

A Review of Police Interrogation and Confessions: Essays in Law and Policy by Yale Kamisar

Interrogation Without Questions: Rhode Island V. Innis And United States V. Henry, Welsh S. White

Michigan Law Review

In Rhode Island v. Innis, the Court defined "interrogation" within the meaning of Miranda; and in United States v. Henry, it defined "deliberate elicitation" within the meaning of Massiah. This article explores the implications of Innis and Henry, suggests readings of the new tests consistent with their purposes, and applies the tests to several situations where the scope of the fifth and sixth amendment protections remains unclear.

Police Use Of Cctv Surveillance: Constitutional Implications And Proposed Regulations, Gary C. Robb

University of Michigan Journal of Law Reform

This article evaluates the constitutionality of CCTV "searches." Part I discusses the present uses being made of closed circuit technology and evaluates the merits of the CCTV surveillance system. The critical policy trade-off is the system's effectiveness in combatting crime against the resulting loss of privacy to individual citizens.

Part II considers the constitutional implications of CCTV use in terms of three major doctrines: the Fourth Amendment prohibition against "unreasonable searches and seizures"; the constitutional right of privacy; and the First Amendment guarantees of free speech and association. This part briefly summarizes the state of the law concerning these constitutional …