Posted by:  Edmund R. Folsom, Esq.

Date:  July 26, 2016

This is part 2 of my effort to demonstrate that we do not take the 4th Amendment seriously (part 1 is here).  We talk as if we take the 4th Amendment seriously.  We talk as if violating the Constitution is a big deal, but if we took 4th Amendment protections seriously, we would have to create a scheme of effective sanctions for 4th Amendment violations.

Lawyers, judges, legislators, the President of the United States, and public office holders of all stripes swear under oath to uphold the United States Constitution, to preserve it, to protect it, to defend it.  What does that mean?  What are they swearing to do?  The U.S. Constitution, and especially the bill of rights, restrains what federal and state governments and those acting under their authority are allowed to do.  For government officials, upholding, defending, preserving, etc., the United States Constitution primarily involves adhering to the restraints the Constitution places on them.  It would be expedient, for instance, for a given politician in power to shut down or eliminate all opposing speech, but the First Amendment restrains politicians from doing that.  It would be expedient for police to ferret out crime with unbridled power to search and seize persons, houses, papers and effects, but the 4th Amendment restrains them– or so it says.  The problem is, ambitious people restrained from pursuing goals dear to them tend not to be fond of their restraints.  That is why we make public office holders swear to respect and uphold the document that imposes their restraints.  Although the Constitution imposes many restraints on government and its agents, I will focus here on the restraints imposed by the 4th Amendment, which provides as follows:

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.

Way back in Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court declared itself the ultimate arbiter of the U.S. Constitution’s meaning.  We look to the Supreme Court to tell us when a particular search or seizure is “unreasonable” and when a search warrant or an arrest warrant is required.  The Court does this by examining the facts of the particular cases it chooses to consider, and issuing opinions declaring whether the search and/or seizure involved in a particular case complied with the 4th Amendment.  Each case becomes precedent for those confronted with factually similar searches and seizures in the future:  police, deciding how to go about a search or seizure in the first place, and courts, reviewing police actions after the fact.   At this level, the Supreme Court essentially calls the “fair balls” and “foul balls” of the 4th Amendment.  But is simply calling fair and foul balls enough, or is the Court required to do more to carry out its Constitutional duties?  What if police pay no attention to the Court when it calls “foul!”?  What if cops continue to run around, knocking down doors, searching houses without warrants, rousting people without probable cause or reasonable suspicion, etc.?  That is pretty much what was going on when the Court decided Weeks v. United States, 232 U.S. 383 (1914) (creating an exclusionary rule for the federal courts), Mapp v. Ohio, 367 U.S. 643 (1961) (extending the exclusionary rule to the States under the 14th Amendment’s due process clause), and Wong Sun v. United States, 371 U.S. 471 (1963) (implementing the “fruit of the poisonous tree” and “attenuation” doctrines).  The Supreme Court could have decided that the Constitution requires it to do no more– even restrains it from doing more– than announce the scope of the limitations the 4th Amendment places on police.  Under such an approach, it would be left entirely to Congress, the executive branch and state legislatures to implement effective ways to reign in 4th Amendment violations.  But that’s not what the Supreme Court decided.

In Weeks v United States, federal agents gathered evidence in a warrantless search of Weeks’ home, and then the government used the evidence against Weeks in a federal trial.  The Supreme Court ruled that the illegally seized evidence should have been returned to Weeks, not used against him.  The Court reasoned that the 4th Amendment would have no effect if courts allowed illegally seized evidence to be used in criminal trials, and that allowing its use would amount to a sort of judicial approval and promotion of illegality.  The Supreme Court therefore established an exclusionary rule, applicable in federal courts, for 4th Amendment violations committed by federal agents.  However, because the 4th Amendment only restrains the actions of the federal government and its agents, the Court declined to order the return to Weeks of evidence that was illegally seized from him by local police.   The Weeks Court found it had a duty not only to declare that a 4th Amendment violation had occurred but to actually do something about it, in the form of excluding the evidence seized by federal agents from being used in a federal court.   On the other hand, the Court believed that the Constitution restrained it from ordering the exclusion of evidence seized by agents of a state government.

By the time the Supreme Court decided Mapp v. Ohio, the Court had already decided that 4th Amendment protections are enforceable against the states through the 14th Amendment’s due process clause.  That clause directly restrains the powers of the states to curtail individual rights, providing:  “No State shall…deprive any person of life, liberty or property without due process of law.”  Mapp involved local police who conducted a house-wide search of Ms. Mapp’s residence, in blatant violation of the 4th Amendment’s search warrant requirement.  The question in Mapp was whether it was necessary for the Supreme Court to declare an exclusionary rule, applicable in state courts, for 4th Amendment/due process violations committed by state actors.  The State of Ohio had no judicially or legislatively created rule calling for exclusion of the illegally seized evidence.  The Mapp Court imposed such a rule, stating that the Weeks exclusionary rule is “of constitutional origin,” and “an essential ingredient of the Fourth Amendment.”   Because the Mapp Court found that the only effective way to combat– “remedy”– 4th amendment violations is to exclude the illegally obtained evidence, the Court found it necessary to impose an exclusionary rule on state courts.

As seen above, the 4th Amendment states that the right of the people not to be subjected to unreasonable searches and seizures “shall not be violated.”   Yet the exclusionary rule, riddled as it is with an ever-growing list of exceptions, does fat little to shore-up that guarantee.   If the Supreme Court any longer believes the exclusionary rule is “an essential ingredient of the Fourth Amendment,” it believes that ingredient to be essential only in an ever-shrinking pool of circumstances.  What then, puts teeth in the 4th Amendment’s guarantee that our right not to be subjected to unreasonable searches and seizures “shall not be violated?”  All those government officials who have sworn an oath to preserve, protect, uphold and/or defend the Constitution have sworn an oath to preserve, protect, uphold and/or defend this particular constitutional guarantee.  What are they doing to preserve it, to protect it, to uphold it and/or defend it?  As discussed in part one of this screed, I point out that police have very little incentive to adhere to 4th Amendment restraints, because police are so often rewarded and so seldom meaningfully punished for ignoring those restraints.  The Supreme Court, in Weeks and Mapp, felt compelled to jump into the breach, because a majority of the Justices believed there was no effective way to enforce the 4th Amendment guarantee other than by imposing an exclusionary rule.  Now, the Supreme Court has lost its stomach for enforcing the guarantee through  the exclusionary rule, because of its dislike of exclusion’s high costs.  Still, the Supreme Court has given us a body of law to guide us in identifying and avoiding 4th Amendment violations.   The Supreme Court has few available tools to enforce 4th Amendment protections, other than exclusion, but that is not true of the legislative and executive branches of government who have many tools at their disposal to discourage police from violating the 4th Amendment.  We just need those legislative and executive branch officials to step up; to no longer abdicate their responsibilities under the 4th Amendment and their oaths of office.

It would be extremely naïve to believe that police do not routinely violate the 4th Amendment.*  Those who don’t like the exclusionary rule like to refer to it being imposed when the police “blundered” or made a “mistake,” but a large number of 4th Amendment violations stem from a purposeful testing or ignoring of limits.  The Supreme Court took a very clear-eyed view of this phenomenon in its Miranda decision, where the Court cited examples of concerted police efforts to skirt its rulings on voluntariness of confessions and the right against self-incrimination– in other words, where the Court cited examples of purposeful police attempts to undercut constitutional rights, routinely testing the limits of what the Court would tolerate. In the 4th Amendment context, what police have learned is that the limits are very soft.  I don’t blame the police.  I blame us for not enforcing the 4th Amendment’s limits on the police. The 4th Amendment exists because the framers knew that the police will do whatever they are allowed to do.  The issue is what we will allow them to do.  When we routinely allow 4th Amendment violations to go unpunished, we allow police to violate the 4th Amendment– we do not take 4th Amendment protections seriously, lip service, including oaths of office, aside.  Citizens are routinely stopped, in traffic and on foot, for the most minor of purported violations, or for nothing at all.  They are patted down, sometimes pushed around, subjected to dog sniffs, questioned about where they are going, where they have been, asked for I.D., asked for vehicle registrations and insurance information, made to wait while a background check is performed, encouraged to allow police to search their persons and vehicles, etc.  This is what happens when police are encouraged to err on the side of committing constitutional violations rather than taking a chance they might otherwise fail to uncover a crime or a criminal.  But the 4th Amendment strikes a different balance.  When we fail to require that police adhere to the balance the 4th Amendment strikes, we reject the 4th Amendment balance.  We reject our constitutional protections, because we think they might cost us too much.

Meanwhile, those communities most often subjected to searches and seizures at random and at whim seek protection from the 4th Amendment, only to be told by the courts that the cost of imposing the exclusionary rule is too high, while the rest of us look the other way, refusing to take the 4th Amendment seriously.  Friction ensues.  Your cost is your cost, not mine, until the day the cost becomes mine.   Look, I’m not calling for anything the 4th Amendment doesn’t call for, in its guarantee that the right of the people to be secure from unreasonable searches and seizures “shall not be violated.”  When we fail to punish constitutional violations, we encourage constitutional violations.  You might not like the idea of making it a crime to violate the 4th Amendment intentionally, knowingly, recklessly or with criminal negligence.  You might think that enforcing the 4th Amendment that way would cost us too much.  But the violations we are overlooking at this point are not without cost.  There are options available other than criminalizing the behavior (although we generally have no reluctance to criminalize even the most trivial of matters), but it’s time to somehow give the  4th Amendment teeth.

The exclusionary rule doesn’t do much as it is, and the Supreme Court keeps ensuring it will do less and less with each passing year.  The Supreme Court is pulling back, still calling the foul balls and fair balls of the 4th Amendment, but reluctant to do anything about the foul balls because it finds the sole tool at its disposal– the exclusionary rule– not particularly effective in many circumstances, yet always costly.   The Supreme Court may be the ultimate arbiter of what the Constitution means, but it does not have to be the ultimate arbiter of how 4th Amendment limits are enforced.  The people, through their elected representatives, will be the ultimate arbiters of how those limits are enforced.  If we don’t care enough to ensure that constitutional limits are enforced, we can hardly expect the government or its law enforcement agents to give a damn about them either.  Will we be paralyzed as the Supreme Court continues to throw back to us a task we should take up through our legislative and executive branches– have we become that lazily reliant on the judicial branch– or do a majority of us simply not care enough to ensure that our own 4th Amendment protections have teeth?

*Anecdotally, way back in the 90’s, I was a Deputy D.A., talking to a young police officer who was about to leave police work and head to law school.  The officer had a perfectly fine reputation.  One thing he said on his way out the door of police work stuck with me.  He said his experience as a police officer was going to be very useful because, for one thing, he would know, as a lawyer, when the cops are lying — he didn’t say he would know if they are lying, but that he would know when they are lying.

Disclaimer:  This post is not legal advice and is not to be taken as legal advice. It is for information purposes only.

Related Posts:

To Replace a Dying Exclusionary Rule

Exclusionary Rule, Part 3.


Additional Related Items:

Here’s another bit on the problem of 4th Amendment rights without remedies– really of illusory constitutional promises:


In California, it is now a felony for prosecutors to withhold or alter excuplatory evidence from the defense.  This will have an effect on prosecutors similar to the effect it would have on police to criminalize 4th Amendment violations.   California prosecutors now know if they are caught in one of these misdeeds, the consequences will be severe.  This will do a lot to erase an attitude among prosecutors of “What the hell, go for it” in the same way criminalizing the commission of a 4th Amendment violation would do a lot to rub out a similar attitude among police.  If a protection against State overreach has no teeth it’s no protection at all.