Reaching the Forbidden End

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

-oOo-

This brief account explains how the Supreme Court eviscerated the Fourth Amendment.

On 15 December 1921, Federal Prohibition Agents were patrolling the highway between Grand Rapids and Detroit when they noticed the Carroll brothers' car headed in the opposite direction.  Two months earlier, federal agents had unsuccessfully attempted to purchase contraband liquor from the brothers who were suspected of bootlegging.  The agents u-turned, stopped the car and arrested John Carroll for violating the Volstead Act.  During a search following the arrest, the agents seized 68 bottles of whiskey.

In Carroll v. United States (1925) 267 U.S. 132, the Supreme Court upheld the search on the grounds that there was "a necessary difference between the search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved..."    The Fourth Amendment, the Court said, was to be construed "in a manner which will conserve public interests as well as the interests and rights of individual citizens."  So long as the police had probable cause for their search and seizure, the procurement of a warrant was not necessary.

Justice McReynolds, a Presbyterian teetotaler, anti-smoker and arch-conservative, dissented.

"The damnable character of the 'bootlegger's' business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods. 'To press forward to a great principle by breaking through every other great principle that stands in the way of its establishment; . . . to procure an imminent good by means that are unlawful, is as little consonant to private morality as to public justice'."

McReynolds denied that there was any legal basis for exempting vehicles from the warrant requirement and denied that the previously attempted sting gave rise to probable cause two months later.  He reminded the majority that "If persons can be restrained of their liberty, and assaulted and imprisoned, under such circumstances, without complaint or warrant, then there is no limit to the power of a police officer" and nothing is left of the Fourth Amendment.

Carroll was the seminal case in the subsequent eighty year shredding of the Fourth Amendment by the Supreme Court.  Like any truly seminal case, all the festering poison that ultimately hatched out lay in Carroll's poisonous kernel.

The poison was a compound of three toxic concepts: (1) a spurious distinction between persons and places; (2) the substitution of suspicion for probable cause; and, most fundamentally, (3) the notion that the Fourth Amendment could be recalculated ad hoc so as to account for Government interests. Over the next eighty years, in a plethora of factual scenarios, the Court would repeatedly use these toxic concepts to whittle the Fourth Amendment down to the size and consistency of a chewed-on tooth pick.

Dispensing with Warrants

Carroll's distinction between buildings and vehicles was sucked by spurious analogy from the special powers of customs agents to search vehicles and baggage at ports of entry. However, customs searches are sui generis. No authority has ever held that customs agents require warrants or even probable cause to search bags or vehicles at entry points into the country. But a rule for what takes place at ports of entry cannot set the standard for what takes place in the interior of the country; for, if it did, then the Fourth Amendment would be utterly meaningless since anyone could be searched not only without a warrant but also without any specific probable cause.

Carroll's analogy was not only spurious, it was also an historical anathema because one of the principle grievances which triggered the American Revolution had been the use of general customs warrants to stop vehicles, search homes, interrogate persons and seize contraband and uncustomed goods, wherever found, without limitation and without specific cause.

As an accepted mode of construction, the Constitution has always been interpreted in light of English and Colonial law existing at the time it was drafted since this was the legal and political context in which various words and phrases were used.  At the time of its adoption and continuously since, the only exception to the Warrant Requirement, apart from customs searches, was the exigent circumstance of an observed (not merely suspected) felony being committed in an officer's presence.

The Founding Fathers knew all about contraband rum runners like John Hancock.  They were not Panglosian morons. Nevertheless, they made the prior obtaining of a judicially reviewed and issued warrant a pre-requisite for any search or seizure.  They did so because, without the warrant requirement, there is no limit to the power of a police officer.  The fact that police conduct may be disapproved post hoc does not mean that it is curtailed a priori.

After many permutations over the course of the century, Carroll's first toxic concept reached its poisonous fruition in Segura v. United States (1984) 468 U.S. 796, in which the Court held that a non-moving dwelling may be seized by the police until they are able to secure a warrant for its search. 

In that case, federal drug enforcement agents had probable cause to believe that Segura was selling drugs out of his home. They arrested him outside his apartment which they then entered and, without touching anything, "froze" the premises from within until the following day when they obtained a warrant authorizing further search and seizure. 

The Court reasoned that, although a house, unlike a vehicle, cannot disappear into back roads and by-ways, evidence within it can be destroyed and is, in that sense, just as "movable" as a car.  In this regard, Americans will be pleased to learn that there is a vast compendium of constitutional jurisprudence on flushing toilets. The compendium reached its culmination in Segura which held "that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents."

In so holding, Segura dispensed with any vestigial and bothersome notions concerning "exigent circumstances" such as facts giving rise to a reasonable belief that evidence was about to be imminently flushed or destroyed. The Court's majority explicitly accepted that no exigent circumstances had existed at the time the police entered the apartment.  Segura's  "freeze and seize" rule was justified by the need to prevent merely the possible, hypothetical, destruction or removal of evidence.  Of course any evidence anywhere can possibly be destroyed or removed and, on that basis, any building can be secured and seized without a warrant, just as the Carroll brother's car.

Lowering the Bar

The second of Carroll's poisons concerned the meaning of probable cause.

Unlike their Continental counterparts, English and American jurists tend to cultivate ambiguity rather than precision.  As a result there has never been a very precise or clear treatment of the difference between hunch, suspicion and probable or reasonable cause.  The ultimate result is that the fundamentally effective requirement for a search ("probable cause") has remained a question of judicial gut feeling no matter how much the courts bandy about words like "articulable" "reasonable" "objective" and, most currently, "objective reasonableness" -- as distinct (one supposes) from "idiosyncratic reasonableness." 

(If judges actually thought about what they wrote, they might actually be embarrassed.)

To facilitate understanding of Carroll's second poison, it will help to divide an imagined line into degrees of proof,

hunch---suspicion---probable cause--proof beyond doubt

A hunch is typically thought of as a "naked belief" that someone is up to something without any articulable reason to support the conclusion. Because "up to something" could be anything it points to nothing specific either guilty or innocent. The "decision" that a guilty-something is involved is a logical toss-up.

In actuality, however, hunches do not arise out of the blue.  Both "inchoate hunches" and "reasonable suspicions" are based on generalizations and pre-judgements drawn from experiences. When a patrol officer pulls over a brand new car being driven by three black youths, he is not acting whimsically but on the coupling together of typically true generalizations; viz, that juvenile delinquents often act in concert, that blacks tend to be poor, that shiny new cars are expensive.  There is a chance  -- some possibility -- that the car is being stolen. At the same time, however, there is no fact from which it can be inferred that this car is being stolen at this time by these youths. The only thing shown is that the "suspects" fit into a conflux of very broad generalizations, sometimes called a "profile." Matching a profile raises a possibility which is not entirely arbitrary but which lacks any degree of probability (or, as the courts often say, “specificity”). There is simply no basis on which to say that the seeming inference of guilt is more true than not.

If however there had been a report that two or three black youths were recently seen in the vicinity looking into parked cars, then those facts, in those proximate circumstances, would give rise to a more specific possibility of criminality.  The inference which could be drawn on these facts is still a mere possibility but it is one which is anchored to some specific fact more concrete than the coupling of abstract generalizations.  This situation -- generalizations which have a toe-hold in actuality --  is what judges refer to as an "articulable" or "reasonable" suspicion.

The distinction between a "hunch" and a "suspicion" is so tenuous as to be almost meaningless. In both cases we are dealing with mere possibilities or (at most) extremely low probabilities.  Nevertheless, it is a distinction the Supreme Court has drawn and it is on that basis that it has been able to speak of an "articulable" or "reasonable" suspicion as if this were something substantial and more  significant than a toe-hold on the edge of probabilities.  

Probable cause on the other hand involves such a calculus of inferences from specific facts that passes from possibilities into specific probabilities -- not just a general or abstract probability based on actuarial data but a focused probability concerning a particular person, place, object and crime.  In the example given, a report that a car of matching or very similar type owned by a silver haired old lady was recently reported stolen would make it more probable than not that this car being driven by three black juveniles was stolen.

Such a probability would not end the matter, as there might always be some explanation or defence as to why these three men were in that car.  But the likelihood of criminality would be enough to warrant an arrest and trial, at which the charge could be proved beyond a reasonable doubt.

At the time the Fourth Amendment was drafted, the accepted meaning of "probable" was: "Likely; having more evidence than the contrary, or evidence which inclines the mind to belief, but leaves some room for doubt. That is accounted probable, which has better arguments producible for it than can be brought against it." (See e.g., Webster's  Dictionary (1828).) Thus, traditionally speaking, probable cause fell into the ambit of preponderating probabilities and was little different from the standard of guilt in civil cases.   What is of note  is not that this is a lesser standard than that required for criminal proof, but rather that it is still, nevertheless, a standard of guilt.

With these definitions in mind, it can be seen that the majority in Carroll set a very low bar for what was said to be probable cause.  The prohibition agents had more than a hunch based on the general fact that the road in question was known to be frequently travelled by bootleggers. Two months previous John Carroll had agreed to supply the agents with liquor although he never followed through with the deal.  There was certainly a somewhat specific possibility that on the date in question the Carroll brothers were running contraband. But as McReynolds correctly pointed out, there was no demonstrated probability that they were doing so at the time they were stopped.  Assuming that the Carroll brothers were bootleggers that fact did not mean that everywhere they drove they were spiriting whiskey from one place to another.  The arguments for and against there being whiskey under the back seat were in equipoise. In the end, Carroll  allowed a detention and arrest on a bare suspicion.

Unlike Carroll's legal rule concerning a warrant exception for vehicles, its factual finding of probable cause was case-specific and did not -- on the surface -- announce any new standard of good cause for an arrest or search.  Even so, its finding sounded an ominous gong as to how low the Court was prepared to go in order to "conserve public interests" as they put it.   McReynolds was alive to what the majority was down to: "Any law which would place the keeping and safe conduct of another in the hands of [the police] or upon mere suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees."

How destructive was made clear, 43 years later, in Terry v. Ohio (1968) 392 U.S. 1 which  held that the police needed only a "reasonable suspicion" to stop and frisk people they suspected of possibly engaging in criminality.

In Terry, the police officer saw three black men hanging around on a street corner for 30 minutes in the afternoon, repeatedly looking into store windows and evidently not waiting for anyone. Deciding that they were casing the store, the officer approached the men, asked them their names and patted them down for weapons, at which point the officer felt and seized a revolver in Terry's pant pocket. Terry was charged and convicted -- not of attempted theft -- but of carrying a concealed weapon.

The Court held that the seizure of Terry's weapon was lawful because the Fourth Amendment allowed a "cursory" search for weapons where the officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." In this case, the "specific reasonable inferences" the officer was "entitled to draw from the facts in light of his experience" were that the men appeared to be casing the store and were contemplating a robbery which "it is reasonable to assume, would be likely to involve the use of weapons."  In plain English, a pat-down for weapons could be based on a hunch.

Strictly speaking, the officer's initial approach and momentary detention for questioning was not at issue in Terry.  But since a frisk for weapons cannot take place without an antecedent stop, the Court felt obliged to address that issue as well. In this regard, the Court  explained that "[w]henever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. ... It is a serious intrusion ... and it is not to be undertaken lightly....  In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 

Courts and lawyers were quick to realize that Terry had in fact re-written the Fourth Amendment, formally and explicitly replacing the probable cause standard with a lower standard of reasonable suspicion applicable to vehicles and persons. The formula was given explicit imprimatur, in Brown v. Texas (1979)  443 U.S. 47, 51 which held that to detain a person for questioning officers must "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity."

The formula sounds appealing until one realizes how significant a retreat from the probable cause standard is involved.  Despite the palaver about articulable specificity, Terry's reasonable suspicion standard was not only well below the Fourth Amendment's probable cause threshold, it was also vague in that the phrase "is involved in" was open-ended. How open-ended was illustrated by United States v. Sokolow (1989) 490 U.S. 1  in which the Supreme Court held that a "criminal profile" constituted a reasonable suspicion even absent any objective indicia of present criminality. 

In that case, Sokolow had booked a round trip flight from Honolulu to Miami including a two-day layover before returning.  He paid for the ticket in cash and travelled under a name which was different from the one under which his home phone was listed. He was dressed in a black jumpsuit, wore gold jewelry and travelled with carry on bags only.  He was said to appear nervous.  On arrival in Miami, DEA agents "grabbed" him by the arm and escorted him into an office where his bags were searched.

Dissenting, Justice Brennan pointed out that, even under the Terry standard, "before detaining an individual, law enforcement officers must reasonably suspect that he is engaged in, or poised to commit, a criminal act at that moment." [Original emphasis.] Nothing in the alleged profile-facts supported an inference that Sokoloff was then and there transporting drugs.

The Court's majority was indifferent. With remarkable candor they stated:

"The Fourth Amendment requires 'some minimal level of objective justification' for making the stop. ...  That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.  We have held that probable cause means "a fair probability that contraband or evidence of a crime will be found," and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause."

Fitting a profile is simply another way of squeezing rain from a cloud. A "profile" may indicate some possibility that a person "is involved" in criminality as a propensity or practice in the way that lawyers "are involved" in law.  That is not the same as saying that the involvement is occurring at a particular moment in time.  The rest is pot-luck.

The majority were equally cavalier with the scope of Sokoloff's "stop".  Part of Terry's rationale for lowering the causal bar was that the "intrusion" of a brief stop for cursory questioning, while technically a "seizure" of the person, was a minimal detention of short duration. There was nothing minimal about Sokolow's seizure.  Far from being a hands-off investigative questioning, he was "grabbed" by the arm and "escorted" into the DEA sub-station.  By any reasonable measure he had been arrested de facto, albeit without probable cause. There was little the court's majority could do with this fact except ignore it.

A False Balance

But to ignore Sokoloff’s seizure was to ignore precisely what the Fourth Amendment prohibits. This, in turn, revealed Carroll's third poison; namely, its dictum that the Fourth Amendment should be interpreted in a manner which "will conserve public interests as well as the interests and rights of individual citizens."

As of the time Terry was decided this dictum had evolved into an accepted formula that the legality of any search or seizure depended on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." (See United States v. Brignoni-Ponce (1975) 422 U.S. 873, 878, citing Terry.)

Twenty years later, even the pretence of a balance was  discarded. Soklow reversed the lower court's ruling "because of its serious implications for the enforcement of the federal narcotics laws." (Id, at p. 7.)  A constitutional limitation on the government's enforcement of its laws had been inverted into an imperative for the sake of law enforcement. 

The metamorphosis of Carroll's dictum had far-reaching implications for constitutional jurisprudence in general, which are paradigmatically illustrated by its role in the destruction of the Fourth Amendment.

In 1925, it was still too early in the day for the Court to speak in the functionalist lingo of "balancing tests" which later proliferated like weeds throughout the Garden of the Law and stupefied the minds of credulous lawyers.  These so-called "tests" were the spawn of a modernist ("sociological") jurisprudence the basic premise of which was that the Constitution needed to be "reinterpreted" in light of modern conditions.  The view propounded was that law was a "tool of social engineering" which could be used  to bring about desired socio-economic results and that law law needed to be "rationalized" so to explain away or weed out anachronisms which, supposedly, no longer made sense.

One such anachronism was the Fourth Amendment whose authors, it was said, never imagined the possibility of the modern automobile.  The Amendment required reinterpretation in light of modern conditions the Founders could not possibly have anticipated. 

This modernist condescension was pure drivel.  The Constitution was drafted with human nature in mind, not on the assumed existence of a technological status quo.  A mule-cart bearing contraband moonshine under a stack of hay, might move more slowly than a Model-T Ford with its breakneck speed of 40 mph, but it moved quickly enough to escape the issuance of a hand-scripted warrant served on horseback. What concerned the Drafters of the Constitution was the propensity of human governors to abuse their authority and power.  From the corruption of Athenian democracy to the abuses of Crown customs agents, the Drafters had ample empirical evidence of the ways, means and devices of the human heart.  On that basis, they made certain definitive decisions as to the extent and balance of individual rights, social needs and governmental powers.  What Carroll's neat and fair-sounding formula failed to answer is: whose interests take precedence? The formula ignored that, in respect of fundamental rights, the balance  was struck and set in the Bill of Rights.

Despite the pretence of scientific sounding lingo, the serious affect with which they are propounded and the gullibility with which they are swallowed, these balancing tests are devoid of any empirical objectivity -- they are not "tests" of any sort at all other than the sort of test which comes from holding finger to air.  The "tests" are simply a masquerade for making law  mean what it has to mean in order to promote some chosen concept of the public welfare. 

German jurists in the 1920's called this approach teleological jurisprudence and it became the cornerstone of National Socialist law, the purpose of which was to provide an explanatory justification for the chosen needs and asserted well-being of the National Folk Community. 

The same methodology was resorted to in the United States under the rubric of "outcome-determination" or sociological jurisprudence. The asserted social, economic or political purpose of any law, to promote this or that goal, would determine what the law had to mean and was.  Legal analysis and argumentation was reduced to the scrounging up of "rationales" for the ultimate holding or desired result.

German "teleological jurisprudence" differed from American "sociological jurisprudence" in that, theoretically, there was no balance at all and no individual right could trump State imperatives. But, in practice, the distinction was, illusory.  By debasing jurisprudence into a collection of "rationales" in favor of a result which is decided upon on some other basis, American law  ceased  being a prescriptive guidance and was reduced to a collection of post-hoc, sound-bytes.

By turning a guarantee of individual rights into a formula for "factoring in" governmental interests under the guise of an ever-renewable balance, Carroll allowed for a jurisprudence of evisceration. In either the German or American system, "law" becomes simply the howl that accompanies the exercise of state power.

The Carroll majority argued that the use of the word "reasonable" in the Amendment required it to balance personal and governmental interests in any given case.    But as McReynolds argued, the Amendment's prohibition against "unreasonable" searches did not open to the door to any means a judge might  think is "reasonable" if the means negated or circumvented the Warrant Requirement. Otherwise, the Amendment is rendered meaningless since the only thing it prescribes is improvisation.

The Howl Reaches Its Pitch

The Carroll court's dictum effected a fundamental perversion of Fourth Amendment jurisprudence. That article stood as a specified guarantee of personal rights, not as de jure vehicle for governmental policies.  As the Court itself had stated ten years before,

"The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law.  The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." (Weeks v. United States (1914) 232 U.S. 383.)

As of 1968, when Terry was decided, the prohibition against unreasonable and unwarranted seizures was rebranded as a Reasonable Search and Seizure Clause. (Sibron v. New York, (1968) 392 U.S. 40)  In Sokolow, the fatal balance reached its final tip: in and of itself "serious implications for the enforcement of the federal narcotics laws" became the determining consideration for the outcome.

This fundamental shift was again made explicit in Florida v. Royer (1983) 460 U.S. 491 in which the Court ruled that "because of the public interest in suppressing illegal drug transactions and other serious crimes," a temporary detention for questioning in the case of an airport search  may be justified without a showing of 'probable cause' if there is 'articulable suspicion' that a person has committed or is about to commit a crime."  (See also Florida v. Rodriguez (1984) 469 U.S. 1.)

What Sokolow, Royer and Rodriguez illustrated was that the "balancing test" is a pseudo matrix to fool people as to what is really going on.  In neither case was any "balancing" involved, the Court simply ruled that the "public interest in suppressing ... crimes" over-rode the constitutional guarantee to be free from seizure absent warranted probable cause. It bears repeating that the Fourth Amendment was designed as nothing less than a limitation which applied to the "public interest" in suppressing crime.   It was not meant to facilitate state power but to restrict it; and not just some times but all times whether convenient or not.

The judicial snake oil did not stop at pseudo balancing.  It could hardly have been a coincidence that the Court had taken on cases which involved airport searches. The Court's opinions repeatedly referred to the search at issue as an "airport search" insinuating that some kind of "carefully delineated" aircraft safety exception was at issue.  But the searches in these cases had nothing to do with aircraft safety.  They were ordinary searches for drugs such as might occur on any street corner or highway. The airport was simple the mise en scene which had nothing to do with the real guts of the holding.

The justification for a “stop and frisk"  — that it was a minimal intrusions which required minimal justifications — was a canard. The Court well understood that all criminal investigations proceed in sequential steps and that even a formal arrest begins with an initial "minimal" stop. The Terry decision gave birth to what became known as "escalating reasonable cause."  From the starting point of an initial "momentary detention" for questioning, the police became adept at managing the situation so to generate more excuses for further intrusions and searches.

Thus, in Terry, the initial "rationale" for the stop (supposedly to ask the boys if they were contemplating a robbery) was  in the next instant cast aside in favour of an assumed safety issue "reasonably requiring" a pat-down. The Court's opinion never once pointed to any "articulable fact" implicating a suspicion that Terry was armed.   It would be the stuff of vaudeville, were the consequences to individual liberty not so severe. In reaching its result, the Terry Court ignored that never once had there been the least attempt to investigate anything. The officer simply approached Terry, asked his name, and when the latter mumbled a reply, spun him around and frisked his clothing and followed up with a full blown search. Similary in Sokolow, the majority again played the fool, pretending to ignore the patently obvious fact that the DEA agents planned and intended to arrest Sokolow for drug trafficking.

How far the Court would prostrate individual rights to government interests quickly ensued from Terry's distillation of Carroll's poison.  Not only did the Court lower the bar from the probable cause standard to the toe-hold rule of reasonable suspicion, it then sought to prevent inquiry into the actual causes motivating the seizure.  It did so by equivocating on the meaning of “motive.”

The facts in Sokolow pointed to a weakness in the Court's “balancing” in favor of governmental interests. In Sokolow, as most probably in Carroll, all signs were that the agents were acting on the basis of undisclosed information. The probable cause standard requires the government agents to 'fess up and reveal their true sources. The reasonable suspicion standard does not but rather allows them to concoct plausible sounding excuses, howsoever weak the beer might be.

Even so, a smart defense lawyer could exploit the facts to explore law enforcements true 'motives' — that is, the actual causes driving their decisions and conduct. In Sokolow's case, counsel might have seized on the fact that grabbing Sokolow's arm bespoke a purpose to arrest from the outset. From that point of departure counsel might then have sought to examine the agent on why he had resolved upon an arrest as opposed to engaging in momentary and  hands-off questioning.

The Court needed to foreclose exploration into such "motives" and did so in Whren v United States (1996) 517 U.S. 806  wherein it held that an officer's "subjective" motives for making a stop or arrest were not relevant under the Fourth Amendment so long as there was some "objective" basis, howsoever minimal, technical or "pretextual"  (the Court's word) for the  detention.

In Whren, the pretext for the stop, which ultimately uncovered drugs, was an un-signalled left-hand turn.  That offence, the Court held, was necessary and sufficient for the stop. Far be it for Officers of the Law to ignore violations of the King's Traffic Law ... and far be it for the Court to inquire into ulterior subjective "motives."  Of course, if probable cause “escalated” from the initial detention, one could hardly expect officers to ignore blatant evidence of possible criminality.

In conjuring up this doctrine of judicial blindness, the Court characterized the issue of "motives" as something involving personal hostilities or purposes -- such as racial bias or a desire to check out a pretty driver's legs.  It was a blatant sophistry which equivocated on the meanings of “motive.” A “motive” is simply the driving force or effective “cause” of something. To inquire into “probable cause” is to ask a question about motives or motivating factors; i.e., what facts caused the police to believe criminality was afoot.  In Whren, the issue of "motives" was arbitrarily cast as one involving  irrelevant subjective and idiocyncratic motivations, even though the Court well understood that the real motive at issue was the undercover information driving the official and collective investigation.  

With appalling brutality, Whren simply pulled out the word "subjective" to forestall meaningful inquiry into actual probable cause.  It  stands for the proposition, that whatever else law enforcement knows and may in fact act upon, they need not disclose it, ever, so long as they can come up with some plausible sounding pretext -- a "profile" in the case of Sokolow or a violation of traffic law as in Whren.

In other words, the probable cause standard as a true and  thorough examination of what actual drove police conduct  ceases to have any importance and is simply shunted aside, in favor of something that might well be labelled spurious probable cause or, worse yet, spurious reasonable suspicion.   Whatever the police can “objectively” concoct, it will be swallowed whole by the reviewing court.

This year, the black cat leaped from the bag. The recent disclosure that the National Security Agency has been funneling surveillance data to the D.E.A. and local law enforcement on condition that the police hide the source with some "parallel construction" of reasonable cause will come as no surprise to defence lawyers.  

It could hardly come as a surprise to the Court which, as far back as 1979, observed that, "In reviewing the factors that led the agents to stop and question the respondent, it is important to recall that a trained law enforcement agent may be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer."  (Brown v. Texas, supra at 52.)

The Court's recall was utterly disingenuous.  The constitutional standard of probable cause (and even of reasonable suspicion) presupposes review, at some point, by an independent judicial officer -- that is, by a person not endowed with the extra-perceptory faculties of trained agents but with a mere ordinary human capacity for orderly and inferential logic. To say that something must be "reasonable" is at least to say that it is capable, without more, of being understood and assented to be rational beings.  Once it is accepted that a witness has special extra-perceptory abilities, we have sunk back into the  fog of spectral evidence, where uniquely endowed witnesses point to hovering apparitions unseen by anyone else. At that point the Court might as well have hauled out Rev. Cotton Mather's epic jurisprudential tome on The Wonders of the Invisible World (Salem, Mass., 1693).

Consensual Encounters and Exposures

Two more pieces were required to complete the farce.  The first of these was the rule of "consensual encounters."  In a series of cases promulgated in the 1980's and 1990's, the Court lowered the  bar even beneath Terry and ruled that a police officer need not have any reason at all to approach and talk with a person, so long as there was no detention and the person so approached was "free to go."  (United States v. Mendenhall, (1980) 446 U.S. 544.) Nothing in the Constitution, the Court said, forbade a police officer from approaching someone to talk and if the person approached "decided" to stay and chat, about fishing or anything else, that was his free and voluntary decision outside the ambit of Fourth Amendment scrutiny.  In fact, a person is "constitutionally" free to go and to "end" the encounter, even when the police hover over him as he is seated in a bus against the window. (Florida v. Bostick (1991) 501 U.S. 429.)

Moreover, since "subjective motives" are irrelevant there is no need to ask why the officer is wasting taxpayer money talking up fishing; and, if in the course of fishing chat, the person should happen to disclose something suspicious sounding, the officer can hardly be expected to ignore it and cannot be blamed for following up on possible criminality.

Characterizing encounters between people and state agents as "consensual" was the ultimate cheek but that did not stop lower courts from holding that official "requests" to produce identification, to search a vehicle, or to enter a home were not "commands" and therefore that the ensuing intrusion had been "consensual."

Mendenhall and Bostick were truly vicious pieces of work.  An officer in uniform is presumed to be acting in an on official capacity on state business.  That is what the uniform represents.   He is not hired to talk about fishing but rather to represent the State and to discharge the State's business.  There is nothing "consensual" about the encounter because citizens are required to respond to exercises of official authority.   Is a motorist entitled to ignore flashing coloured lights in his rear view mirror on the assumption that the patrol officer is merely looking for someone to chat with about fishing?

Older caselaw required officers to have probable cause before accosting a citizen.  They did so in recognition that the "right" to tell the government to mind its own business and go to hell was one that could only be vindicated in a court of law; otherwise self-recourse to the right would lead to pandemonium.  Under, Mendenhall and Bostick a citizen can exert his right to ignore the officers and go about his business but the police are equally entitled to tazer him or shoot him in the back for "evading" or "non-compliance" with what they unilaterally decide was  an "official request."

Akin to consensual encounters was the doctrine of "voluntary exposure" which the Court used to invert our concepts of public and private space. 

In 1890  professors Warren and Brandeis wrote a short but important article on privacy law in which they anlogised the right of privacy to a fee simple absolute ownership interest in land. (The Right to Privacy,  (1890) 4 Harvard Law Review 193.)  Just as a person owns a 100 percent absolute interest in land, except and to the extent he might give it away, so too a person has, by default, a 100 percent privacy interest except and to the extent he discloses or exposes himself to others.  The article was intended for copyright purposes and to protect people from snooping yellow journalism.  However, in Smith v. Maryland (1979) 442 U.S. 735 and California v. Greenwood, (1988) 486 U.S. 35, the Court adopted the theory to criminal purposes, holding that a person retained no privacy interests in what he had voluntarily exposed to others.

In Smith the Court held that dialed telephone numbers were "conveyed" to the telephone company and could no longer be deemed private.  In Greenwood, the Court followed up and declared that no privacy interests were retained in garbage bags deposited on the curb for pickup and thus "exposed to public view".  The police were free to snoop through it if they wished.

Such sophistries could not be deduced from Brandeis and Warren. Their article made clear that, unlike virginity, privacy could be parted with by degrees for specific purposes. If privacy could be parted with by degrees, it necessarily followed that it could be retained in degrees. A telephone company maintains dialing history for billing purposes in confidence.  Likewise garbage is "conveyed" to garbagemen only as needed for it to be taken to a landfill.  In fact, as the dissent in Greenwood pointed out, the garbage inside the the bag is not "exposed" at all.  It is not "abandoned" to the public or strewn about for all to see. 

At bottom the Court's consensual exposure doctrine was based on a sophistry which equated being seen in public with being followed, stalked or snooped. It is true that a person who ventures out into public "exposes" himself to the public.  People who talk in public likewise risk being overheard.  But they do so to a public which is understood to be indifferent.  These exposures do not imply a consent to be stripped naked by any passerby or to be kept under ongoing  surveillance by police with notebooks in hand.

The result of Smith and Greenwood was an inversion of public and private space in which the only place where one is free from government surveillance is locked up at  home and public free-space is turned into vast, surveilled prison yard.  As Brennan stated, "The American society with which I am familiar 'chooses to dwell in reasonable security and freedom from surveillance,' (Greenwood, supra, at p. 56.)

This then was the general state of Fourth Amendment jurisprudence prior to 9/11 and the Patriot Act.  You can be stopped, frisked, questioned  and arrested for riding a bicycle without identification or for fitting a suspicious profile or for anything else amounting to a so-called reasonable suspicion. Your car can be stopped and searched from top to bottom on any mere pretext.  Anything you expose in anyway is can be monitored, recorded and used against you in a court of law.  Your house can be "temporarily seized" pending the issuance of a warrant for its permanent seizure and a plethora of exigencies (such as saving a cat in distress or even a suspiciously open door) can justify intruding into the house without a warrant on an emergency basis. 

It would be impossible to compress into a short article all the myriad excuses the Court has used to eviscerate the Fourth Amendment and, in fact, these technicalities are not politically important. The salient fact is that, by means of linguistic devices, the Court has shifted the context and focus of the Fourth Amendment so as to lower the bar for any seizure and so as to expand the scope of any search.

Over a 75 year period the Fourth Amendment was inverted from a protection of people against government into a collection of excuses in favor of governmental interests.  The right of people to be secure in their persons, houses and effects has been, in the Court's own words, inverted into a clause which enshrines state power to conduct searches and seizures. ( Sibron v. New York, supra, 392 U.S. 40)

The Law’s Erlkonig

Taking a long view, it can be seen that the evisceration of the Fourth Amendment was accomplished in the name of a some exalted principle:  a crusade against alcohol, against drugs and, now, against terrorism.  What these "evils" have in common is that they are amorphous. They lurk anywhere and anyone is a "potential" rum runner, drug mule or bomb carrier.  Everyone is a fortiori suspect.

Traditional crimes define more or less specific and distinguishable conduct; for example, "breaking and entering" a dwelling, or "taking and carrying away" property of another, or "intercourse without consent."  While these forms of conduct can arise in myriad variations, as forms, they are discrete and distinguishable.

In contrast, drug and rum running are "formless crimes" because they can occur under cover of myriad innocent variations, such as "sitting on a bus" or "talking to a bystander." Terrorism is similarly formless in that it can be carried out by any ordinary-looking person and involve almost any kind of violent criminal conduct.   

Indeed,  in 2008 CIA Chief, Mike McConnell told Congress that Al Qaeda had improved its ability to recruit operatives capable of "blending" into American society and attacking domestic targets.  The only thing moronic about this statement was that, by definition, that is precisely the “capacity” terrorists have.  Did Congress, or for that matter McConnell, really think that terrorists sneak about wearing identifying insignia?  The positing of a “terrorist threat” ipso facto puts the entire country under suspicion.

This is not to argue that the Government cannot outlaw contraband or terrorism.  It is only to point out that the Constitution rightly imposes limitations on how such crimes are detected and prosecuted.  It is one thing to arrest a drug courier on specific information and probable cause that he is presently engaged in drug-running. Once the bar is lowered to a mere suspicion of possible criminality then, precisely because the crime is formless any conduct howsoever “seemingly innocent” becomes suspicious or, as is typically said, "potentially criminal."   

For years, police have resorted to double-talk and passive constructs to slip “potential cause” past supposedly unsuspecting judges.  They have resorted to gobbledegook like, “the suspect was known to have links to potential criminal activity...” Along with blendable terrorists, this amorphous non-sense has confused thought and penetrated even the highest reaches of journalism, as for instance when the New York Times reported “Potential Suspect in Robbery of Justice Breyer.” 

What in the world is “seeming innocence” seeing as things are usually what they seem to be?  What in the world is a "potential suspect," given that a suspect is a person who imaginably might be engaged in something?   Such terms and phrases are mere shadows and, as such, they cast darkness over all of society.  They conjure up an unseen evil which hovers behind and over all making everything which is seemingly innocent potentially suspect.

This is precisely the inversion that takes place in totalitarian societies where the question is not what is prohibited but what is allowed; not who is guilty, but who is innocent.  Worse yet, (seeming) innocence bespeaks (potential) guilt.

The Fourth Amendment was designed to prevent just that kind of inversion. Society is premised on trust and friendship. Accordingly, the Fourth Amendment demands specificity and cause in order to suspend that premise in any particular case. It requires the existence of some  distinguishable criminal act and was specifically designed to prevent rummaging, rampaging hunts for some "potential crime" occurring under apparently innocent activity.

A doctrine or culture of suspicion is a Manichean hysteria which spooks itself with the conviction of some ever-present evil lurking in a world of darkness and which, as a result, converts society into a mighty fortress turned against itself.

Unfortunately political diseases, like physiological ones, develop over time from bad habits and abuse. When they at last break out it is usually too late to remedy the ill-effects except by drastic means which are near as bad as the disease itself. 

As a result no one in Washington — and certainly no one on the Court -- is talking about resurrecting the Warrant Clause requirement.  Rather the point of departure for the public debate (such as it is) is that warrants can issue for a class of activities as to which Government has a general "right" to search by default.  

Likewise, no one is proposing to reinstate the probable cause standard.  Instead they are debating and tweaking the non-standard of reasonable suspicion, which itself has been interpreted as allowing dragnet searches for potential criminals or terrorists -- that is, for persons as to whom no specific information of criminality exists but who might (as a mere possibility) be involved in terrorism or crime. 

The Founders of the Republic understood that the Constitution was a solemn covenant which fundamentally shaped how we would be and what we were about.  The Bill of Rights enshrined a political morality which was intended to restrain the devices expediency.  The Fourth Amendment did not prescribe a kazoo of reasonable pretexts; it established what the Constitution deemed reasonable and demanded.

In another context Justices Sutherland and McReynolds warned that “[e]very journey to a forbidden end begins with the first step."  (Carter v. Carter Coal Co. (1936) 298 U.S. 238.)  They would have understood Samuel's admonishment to the Israelites who rejected their Covenant and cried, "Give us a King to rule over us; so that our king may judge us, and go out before us, and fight our battles!" Samuel showed them the ways of the king that would reign over them and warned them saying, "Ye shall then cry out because of your king which ye shall have chosen but the Lord will not hear you in that day." (1 Samuel 8.)

The forbidden end has been reached and we will not be heard.

Justice Mc Reynolds

©Woodchip Gazette, 2013