Criminal Law and Procedure • Et. Seq: The Harvard Law School Library Blog

The Law and Police Searches

I recently returned from a leave of absence from the library. During my leave, I was fortunate to teach a US Criminal Law and Procedure course at the University of Würzburg in Germany.  Criminal Procedure was one of my favorite classes in law school, and I relished the opportunity to talk about the Fourth Amendment with German law students for an entire semester.

The language of the Fourth Amendment is, perhaps, as broad as it is on purpose:

“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.”

This, of course, is where we started the semester – we spent a whole class session exploring what the students thought words like “secure” and “persons” and “search” and “unreasonable” should and do mean.  Then, we spent the rest of the course digging through the American case law on the topic, in which the courts have provided definitions of those legal terms of art.  We read and discussed some of the U.S. Supreme Court’s seminal cases on Fourth Amendment searches: Terry, Mapp, Kyllo, Stoner, and Chambers.  We also looked briefly at many cases in which U.S. courts have carved out exceptions to the requirement that the police get a warrant before conducting a search.

I was SO impressed by the German students during this course!  Germany has a civil law tradition, which means that, aside from opinions issued by the country’s Federal Constitutional Court, German judicial decisions are not viewed as binding legal precedent.  This means that German law students spend most of law school studying statutory codes, not reading cases, let alone cases in a foreign language.  But they were up for every challenge, and we had enough time left over at the end of the course that I could throw in a class dedicated to Miranda.

Week after week, we kept coming back to the use of the exclusionary rule, which states that evidence that was seized by the police in violation of the defendant’s Fourth Amendment rights cannot be used against the defendant at his or her criminal trial.

One case we discussed, U.S. v. Nora, 765 F.3d 1049 (9th Cir. 2014), had a particular impact.  In the home in which a criminal suspect lived with his wife and kids (!), the police conducted a warrantless search and seized the following:

Narcotics: cocaine, cocaine base, marijuana, heroin, and methamphetamine, hidden in drawers and behind the refrigerator.

Weapons: six handguns, one rifle, and two shotguns (all with ammunition), hidden in a closet and in the garage.

The search was ruled to be unconstitutional, which meant that, under the mandatory application of the exclusionary rule, the evidence could not be used against the defendant in his criminal trial.

In the face of a case with these facts, is it even possible that the exclusionary rule is a good idea?

Supreme Court Justice Clarence Thomas perhaps doesn’t think so.  Earlier this week, the Supreme Court issued an opinion in the case of Collins v. Virginia, in which a warrantless search of the defendant’s driveway led to the seizure of a stolen motorcycle.  In an 8-1 decision, the Court held that searching a driveway, which is to be considered as part of the curtilage of the defendant’s residence, without a warrant or an applicable search warrant exception, violated the suspect’s Fourth Amendment rights.

Justice Thomas agreed with the Court’s holding, but wrote separately to express his doubt about the validity of the mandatory application of the exclusionary rule.  ScotusBlog described Justice Thomas’s opinion as follows:

“Justice Clarence Thomas wrote a separate opinion in which he agreed with the majority’s resolution of the Fourth Amendment question. But Thomas stressed that the case was before the justices because, if Collins is correct and his Fourth Amendment rights were violated, the state courts would have to apply the exclusionary rule, which prohibits the government from using evidence obtained in violation of the Constitution, and “potentially suppress the incriminating evidence against him.” Thomas expressed “serious doubts” about the Supreme Court’s authority to require states to follow the exclusionary rule, which is “not rooted in the Constitution or a federal statute,” and he urged the court to take up that question.”

(http://www.scotusblog.com/2018/05/opinion-analysis-justices-decline-to-extend-fourth-amendments-automobile-exception/)

Overall, after talking about it every week for the whole semester, the German students in the course came out in favor of the exclusionary rule as an important check on the power of the police, although they were, at times, disappointed in its mandatory application.  The course also made them think a lot more carefully about police procedure in their own country, and about the idea that the separation of powers provides important checks and balances in a legal system (here, the judicial branch checks the executive branch).

If you’re interested in reading more about this topic, the Harvard Library collections have some recent books you might want to explore:

The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy, by Michael Gizzi and R. Craig Curtis (University Press of Kansas, 2016)

The Fourth Amendment: Origins and Original Meaning, by William J. Cuddihy (Oxford University Press, 2016)

Police: A Field Guide, by Davide Correia and Tyler Wall (Verso, 2018)

The Unexpected Scalia: A Conservative Justice’s Liberal Opinions, by David M. Dorsen (Cambridge University Press, 2017)

Written Out of History: The Forgotten Founders Who Fought Big Government, by Mike Lee (Sentinel, 2017).

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