“The Spirit of democracy is not a mechanical thing to be adjusted by abolition of forms. It requires change of heart.” – Mahatma Gandhi
Oh, the good Old Fourth. I’m not talking about the Fourth of July either; it’s currently Memorial Day Weekend, but the Fourth Amendment rather. If there is anything in the Bill of Rights to our U.S. Constitution that every cop is affected by on a daily basis, literally, it’s the “4th” and everything that goes along with it. Traffic stops, probable cause, warrantless search requirements, Carroll, Chimel, Belton, Ross, Gantz, Jones, etc. Arrests with and without warrants, affiants, search warrants, seizure inventories and the like. For the sake of brevity lets limit searches of homes, persons, properties and affects to non-all inclusive topics. You get my point. It’s a daily occurrence.
As law enforcement officers we have to overcome certain hurdles due to the protections offered to everyone as a result of the 4th Amendment, but does the law ever really change? We know that the U.S. Supreme Court interprets the Constitution as applied to federal issues that rise to a constitutional level, and every time a cop puts their hands on someone or looks through their stuff we meet that level, but do the Justices (only 112 over the last 221 years – those federal benefits must be good) ever really change their view on previous Amendment views? I mean how could the Founding Fathers ever have conceived of a car, airplanes, Space Shuttle, Former Vice President Al Gore as founder of the Intranet, or Assault Rifles for example? I once read where current Associate Justice Stephen Breyer said that The Court, known here as SCOTUS, often considers the pulse of America when addressing huge issues thought to affect millions. In other words, there seems to be some humanistic influence to their decision making process and not every decision is based strictly on an abstract matter of law with intricacies few understand. My brother-in-law (Prosecutor for the City of Broadview Heights, Ohio, and Law Director for Seven Hills, Ohio) has said that, “Attorneys are known for practicing law, because we are never thought of as being good enough to just do it.”
So, with that in mind, can we draw some conclusions, maybe even trends forthcoming, if we briefly review case law history over the last two centuries involving over one hundred justices? Let’s see.
Honestly prior to 1886 the U.S. Court System simply wasn’t mature enough in terms of its structure and handling of cases to deal with a head-on 4th Amendment question. During that time period a policeman (not sexist here, but no patrol women in law enforcement then) might whack a rogue over the head with his nightstick putting him out, and rifle through his pockets to take what he found and then drag the drunkard back to the station or take him home to recover. Upon review of Boyd v. United States, 116 U.S. 616 (1886) the Court took what appears to be a significant step in applying the protections of the 4th Amendment when it first determined that search and seizure was unreasonable when the government required a man to produce private papers. Not having any American legal experience to draw on to sustain their interpretation, the justices relied on English Common Law in Entick v. Carrington (1765) where English Citizens were protected against abuses of executive power. Notice that nearly a century after The Declaration of Independence our legal umbilical cord had not been completely severed from Mother England when it came to addressing issues of how a government should interact with its citizens.
Horses to Horsepower
By the time the horses were put away and we started driving cars, first quarter part of the 20th Century, SCOTUS took note of this too. In the bedrock case of Weeks (1914) they noted if the police do not seize the evidence legally then the presentation of it in a courtroom is illegal. Carroll (1925) allows us to search cars without an actual warrant in our hands, but at the same time differentiates the increased level of judicial scrutiny when we enter a home without holding onto one. Hence the old saying, “The best search is with a warrant.” I think, from a historical standpoint, it’s worth noting that the next time you stop a car and conduct a search its because of the actions of two federal agents enforcing the Volstead Act (liquor prohibitions) when pulling over bootleggers outside of Detroit, Michigan, on December 15, 1921 on their way back from Canada. Today you can still search a car (with probable cause of course) 91 years later without a warrant in hand. The next time someone complaints you cant search their car without a warrant, you can confidently reply that the police have had the authority from the U.S. Supreme Court for the last century to do this and have been doing so ever since.
What does this era tell us about the viewpoint of the Justices? They knew that criminals could hide evidence better in cars than on horses and this gave the police better conditions of finding the contraband. However, with concern for the protection of citizens, SCOTUS warned that houses are not cars and have to be treated differently.
Empowering the POLICE
Cops are special and that is essentially what Brinegar (1949) said when SCOTUS found that a police officer can determine probable cause on their own without the assistance of a judge. Imagine that. In Rabinowitz (1950), SCOTUS said that a warrantless search to a lawful arrest was valid. In Jeffers (1951) just because contraband was contraband does not mean that if it were seized unlawfully that it would automatically be dismissed at trial, and Draper (1959) highlighted the importance of establishing the credibility for using an informant to develop probable cause leading to an arrest.
What does this era possibly tell us about the viewpoint of the Justices? The judgment of a police officer can be trusted, searches after an arrest are fine, contraband seized wrongly doesn’t immediately preclude it from trial and the informant’s word must be validated.
The Civil Rights Era
Mapp (1961) applied the Exclusionary Rule to the States, Aguiler (1964) again reaffirmed the importance the police should put on establishing how credible their informant is to the development of probable cause, and in Beck (1964) the police when penetrating 4th Amendment protections must use objective facts and not subjectiveness or good faith exceptions to build their case. Reading Hoffa (1966) we see where SCOTUS identifies protective areas (home, car, work and others) from easy government intrusion, and Katz (1967) is similar in that it also looked at barriers to government infringement, but in this case a two prong test was established; actual expectation of privacy and would society see this as reasonable? Stopping a suspect and “frisking” them in Terry (1968) for weapons was not a search as defined by the 4th Amendment and in Spinelli (1969) the Court said that the government must be specific when convincing a judge that an informant is reliable leading to the information obtained from the informant in the furtherance of obtaining probable cause.
What does this era possibly tell us about the viewpoint of the Justices? Evidence can be thrown out at the state level, verify the truth of what an informant says, objectiveness counts, citizens have greater protection out of public, a frisk is not a search, and take another look at those informants again.
Part Two will cover the 1970’s through nearly present day cases.
About The Author:
Keith R. Lavery, M.A., CMAS, is a full-time criminal justice educator teaching at a public Career Center, University System of Ohio. He has facilitated and designed criminal justice, security, and law enforcement courses of instruction at the post-secondary level. Keith had a very diverse police career spanning nearly 20 years, working in urban and rural law enforcement settings with assignments ranging from patrol to specialized functions, to include HIDTA Drug Unit, CLANLAB Enforcement Team, SRT and Supervision. In 2008, Keith was awarded the Certified Master Anti-Terrorism designation from the Anti-Terrorism Accreditation Board. Academically, he has completed post-graduate course work dedicated toward a Doctorate in Education. Keith is currently the Law Enforcement Liaison for the Cleveland, Ohio, Chapter of ASIS International.