Probable cause, constitutional reasonableness, and the unrecognized point of a "pointless indignity".

• Author: Bowers, Josh
• Position: IV. Legality as a Supplement and Not a Substitute through Conclusion, with footnotes, p. 1018-1050

4. LEGALITY AS A SUPPLEMENT AND NOT A SUBSTITUTE

   To recap, the term "unreasonable," as used in the Fourth Amendment, is shape shifting. (153) It describes not one, but two distinct legal standards: a qualitative all-things-considered standard, and a quantitative rule-like standard. (154) In the law enforcement context, the Court has opted for the latter standard over the former. And, in the peacekeeping context, the Court has opted for the former standard over the latter. My prescription is for the Court to opt, instead, for both--to subject law enforcement searches and seizures to legalistic and particularistic constraints on discretion. Specifically, in this Part, I defend a Fourth Amendment test that would treat probable cause as only a threshold to constitutional arrest. Thereafter, a court would turn to the qualitative question of whether a reasonable officer in the same circumstances would have made the arrest for the reasons given (with some measure of deference granted to the officer's reasons). In this way, the court appropriately could honor the legality principle without unduly sacrificing to it other considerations of policy and principle, like dignity.

   1. Two Conceptions of Accuracy

      To some degree, the difference between the two prevailing reasonableness standards boils down to a contest between ostensibly competing conceptions of accuracy. In the law enforcement context, the Court has equated accuracy with satisfied measures of technical legal guilt. In the peacekeeping context, the Court has made accuracy decidedly more evaluative. That is, the Court has recast the accuracy question in terms of whether the state has promoted practical policies and liberal principles well enough--whether its challenged search or seizure was a (but not necessarily the) right thing to do. (155) This amounts to a looser, deeper, and admittedly fuzzier measure of accuracy--one that demands not only a finding "of what happened or is happening in a particular situation," but also "a qualitative appraisal of those happenings in terms of their probable consequences, moral justification, or other aspect of general human experience." (156)

      On its own, legality is incompetent to capture this deeper, looser, and fuzzier measure of accuracy. (157) But it does not translate that the measure cannot be captured. Indeed, a qualitative measure of accuracy is common to tort doctrine and even certain contract doctrines. (158) In tort law, for instance, accuracy entails an evaluation of whether the burdens have been allocated appropriately as between the parties. (159) This is, of course, no easy determination, (160) and that is precisely the point: there can be no ready mechanical test to resolve when and whether a party that caused harm should be considered also a tortfeasor. (161) In this way, there is no crisp "law of negligence." (162) As Roscoe Pound once observed, all efforts to "reduce negligence to rules" have invariably failed: "The law cannot tell us exactly what is an unreasonable risk of injury. It is unreasonable to define the reasonable. The reasonable depends on circumstances, and times and places...." (163)

      Likewise, accuracy (and, by extension, reasonableness) in the peacekeeping search and seizure context "depends on circumstances, and times and places." (164) It demands an evaluation of whether the burdens have been allocated appropriately as between the individual and the state, taking into consideration the individual's interests in (among other principles) liberty, privacy, proportionality, autonomy, equality, and dignity as compared to the state's interests in (among other policies) optimal public safety, order, and good. (165) In a sense, this deeper qualitative conception of accuracy is a vestige of a historical (protolegalistic) model in which lay watchmen were trusted to keep the peace, based on their "particular conception of the good" more than by predesigned legal form. (166)

      In the next Subpart, I examine what it would take for the Court to pursue not only a hard legalistic measure of accuracy for law enforcement searches and seizures, but also this deeper, looser, and fuzzier measure of accuracy for law enforcement searches and seizures--that is, what it would take for the Court to respond to the kind of inaccuracy and attendant arbitrariness (read: unreasonableness) that may be generated by a state-imposed gratuitous humiliation. (167) Specifically, it would take a hybridized--or two-ply--test.

   2. Two-Ply Reasonableness in Theory

      The Court's prevailing law enforcement approach to constitutional reasonableness is somewhat paradoxical: the Court has determined that it should take a formalistic, accuracy-oriented approach to the principle of legality because criminal law is so coercive. (168) However, the coercive nature of criminal law concurrently makes other demands--like respect for dignity--all the more pressing. (169) In this way, the Court's conception of legality is unduly cramped precisely because its conception of accuracy is unduly cramped. That is, inaccuracy as to legal guilt is not all that threatens criminal justice under the rule of law. And, by accommodating dignity and other considerations, the system does not undermine legality; rather, it lends a hand to legality's core project, which is to construct a bulwark against illiberalism. (170) Comparatively, by disregarding dignity, the system carves a zone of authorized humiliation and thereby invites morally arbitrary treatment, which may be just as destructive to liberalism as other kinds of arbitrary treatment. (171)

      How, then, might a criminal justice system better accommodate the legality principle together with the qualitative considerations of principle and policy that also service it? In her Atwater dissent, Justice O'Connor insisted that the Fourth Amendment demanded a "realistic assessment of the interests." (172) She understood that the arbitrariness against which the Fourth Amendment protects is a concept capacious enough to account not only for the legal arbitrariness of the technically inaccurate search and seizure, but also for the moral or instrumental arbitrariness of the indefensible search and seizure. In other words, Justice O'Connor thought of general reasonableness as a kind of backstop against which quantitative reasonableness was set. On this reading, general reasonableness is intrinsic to the Fourth Amendment as a general prohibition against any and all arbitrary exercises of state power. (173)

      Of course, the legality principle is not at all insignificant. To the contrary, I hope I have demonstrated its terrific importance already. (174) But the legality principle is best conceptualized as an auxiliary guarantee that is exceptionally applicable within the special domain of criminal law. It is only there that--due to the stigma and the stakes--formal protections must be added in order to guard effectively against state overreach. The right approach, then, is to ask the quantitative question and the qualitative question (one after the other)--that is, to treat legalistic requirements as necessary but not sufficient. (175) In this way, a two-ply reasonableness test does not abandon probable cause as a rule-like proxy. Rather, the test retains the legalistic proxy as a threshold requirement and then proceeds to the qualitative. The result is, as Martha Nussbaum described in a related context, "a process of loving conversation between rules and concrete responses, general conceptions and unique cases, in which the general articulates the particular and is in turn further articulated by it." (176) On this reading, the legality principle works best when it operates as a special formalist supplement to otherwise relevant realist considerations and not as a special substitute. Concretely, liberal criminal justice demands more than technical guilt accuracy. (177) Guilt accuracy is a starting point, not a finish line.

      This is not to say that an alternative measure of constitutional reasonableness is necessarily easy to implement. The promise and peril of a two-ply test is that a court may be left with two opportunities to invalidate a search or seizure. To put a finer point on it: The promise is that a court successfully may correct for the qualitative errors endemic to any rule-like test. (178) The peril is that the court may overcorrect, and the costs of such errors may be measured in crimes unpunished (and, by extension, some greater amount of harm caused to property and persons or even lives lost). (179) But this is only to say that the qualitative question must be asked and answered carefully--with some amount of restraint--not that it should never be asked at all. And the qualitative question may be asked and answered carefully, because the qualitative dimension of a two-ply reasonableness test need not be freeform. As scholars have recognized, evaluative tests work best when they are not only "openly acknowledged" but also somewhat (but not overly) "structured and controlled." (180) Thus, a qualitative test may exclude certain considerations, include only specified others, and even weight relevant considerations according to established criteria. (181) Indeed, a number of lower courts already have established such semistructured tests for peacekeeping searches and seizures. (182) And, notably, the very fact that courts traditionally have applied general reasonableness to peacekeeping cases without much fuss indicates that the common law method has operated to constrain judicial second-guessing at least passably well. (183)

      Thus, the crux of my prescription is not a call for dyed-in-the-wool particularism but for trust in the common law method--a method that, in its "elaboration of a standard," allows for a healthy degree of "movement from general evaluative ideas to more specific but still evaluative ideas." (184) Of course, the common law method also produces "a certain diminution in law's certainty,"...