Accountability Solutions in the Consent Search and Seizure Wasteland

• Publication year: 2021

79 Nebraska L. Rev. 711. Accountability Solutions in the Consent Search and Seizure Wasteland

711

Jose Felipe Anderson*

Accountability Solutions in the Consent Search and Seizure Wasteland

TABLE OF CONTENTS

I. Introduction .......................................... 712
II. Right Without Remedy: The Accountability Problem and
the Forgotten Legacy of Wolf v. Colorado ............. 719
III. Structural Accountability and the Undervalued Doctrine
of Miranda v. Arizona ................................. 726
IV. The Accountability Vacuum and the Flawed Constitutional
Consent Jurisprudence ................................. 731
V. Perception Accountability: Of Race and Men ............ 741
VI. Accountability Solutions .............................. 747
VII. Conclusion ............................................ 759

[L]aws will not eliminate prejudice from the hearts of human beings. But thisis no reason to allow prejudice to continue to be enshrined in our laws to perpetuate injustice through inaction.1

Roper: So now you'd give the Devil benefit of the law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that.

More: Oh? And when the last law was down-and the Devil turned round on you-where would you hide, Roper, the laws all being flat?2

712

I. INTRODUCTION

The legal and social issues that have emerged out of the doctrine that people in America have a right against unreasonable government instituted searches and seizures3 have dominated the dialogue and controversy in the American criminal justice system over the last three decades.4 A large portion of the debate has centered around the controversial exclusionary rule,5 which frees the sometimes unmistakably guilty because of irregularities in police procedure.6

713

The notion that society suffers when criminals go free because of the constable's blunder has struck a decidedly political note in the discussion over criminal justice reform.7 Many observers are quick to note that the protections of a free society are to benefit the law abiding as well as the criminal.8 Yet others point out that the offender should not be able to behave lawlessly at the expense of others and with the assistance of the law. On the other side of the issue is the painful reality that the power asserted over citizens has often been exercised and abused on racial,9 ethnic10 and economic11 terms.

714

In recent years, the United States Supreme Court has entered this debate with its search and seizure decisions that make a dramatic turn in favor of police discretion12 and away from the more liberal leanings it favored during the Warren Court years.13 While some of these decisions involve the traditional police street and vehicle en-counter,14 many have expanded the rules for employee drug testing15

715

and high technology surveillance,16 as well as those that assist the police in forfeiting the assets of citizens suspected of criminal activ-ity.17 Nothing in these recent opinions indicates the possibility of a return to the broader, more protective search and seizure doctrines that characterized the defendant friendly doctrines of the Warren Court.18

During its most recent terms, the Supreme Court has taken a particularly acute right turn in its search and seizure jurisprudence,19 which has left many scholars wondering whether the Constitution offers any protection at all.20 The Court's opinions raise concerns that the once well regarded freedom from unreasonable search and seizure has become a wasteland without even an occasional oasis of judicial protection.

716

This Article is an attempt to offer a meaningful look at the current state of search and seizure principles being applied (or not being applied) by the Supreme Court.21 It also will attempt to offer some solutions to the primary problem of search and seizure law - the absence of protection from abuse of police discretion,22 particularly during the situation in which the police allegedly obtain consent to search suspects. While police must have some measure of discretion,23 they must also behave reasonably and honestly in the execution of their duties.24 The current judicial retreat from the imposition of specific rules of conduct on police has left a void in privacy protection and presents the opportunity for search and seizure overreaching.25

The Supreme Court has made clear that it no longer will be in the business of fashioning search and seizure "codes"26 for the police of

717

ficer in the field except in the most general terms.27 Some scholars have gone so far as to consider much of the Fourth Amendment to be "dead letter"28 due to the exceptions29 and modifications that have eroded the host of Warren Court decisions.30 The rise of a strong law and order movement31 and a host of conservative appointments to the Supreme Court32 have made expansion of search and seizure protection unlikely.

In this Article, I propose a legislative solution that will balance the need for controlled discretion in search and seizure situations with the desire for a high level of accountability for police officers on the street and those responsible for policy, supervision, and the training of street level officers.33 In the pursuit of reaching a consensus on the proper balance between personal freedom and crime control, particularly where racial bias might be alleged,34 a useful starting point is to adjust the burden of proof35 in certain types of search cases and to require police departments to keep records of police-citizen encounters.

718

More "structural accountability"36 is needed to operate as a check on broad police discretion and to allow the police to reasonably predict how the courts will review their behavior when they conduct searches.37 We will begin to strike the appropriate balance between citizens and law enforcement only by removing the focus from the courts, returning to the privacy expectations of citizens, and demanding more local review.38 More accountability is particularly needed to reduce the racial discrimination that seems to be a dominant and recurring theme in the search and seizure controversy.39 If confidence that the police can conduct themselves fairly and effectively cannot be

719

restored in urban communities where crime is most severe, our objective of a free society will not be meaningfully realized.40

In recent years, the Supreme Court has cut down the trees planted by the Warren Court that were designed to protect criminal suspects from unfair police practices. Subsequent, more conservative Courts have largely ignored the doctrines protecting search and seizure, making that body of jurisprudence a constitutional wasteland.

II. RIGHT WITHOUT REMEDY: THE ACCOUNTABILITY PROBLEM AND THE FORGOTTEN LEGACY OF WOLF v. COLORADO

Most discussions of the Fourth Amendment focus on the Warren Court and its 1960s jurisprudence as a starting point for assessing the current state of search and seizure law.41 However, I believe a proper perspective can only be obtained by reaching back at least to the pre-Warren Court era of the late 1940s.42

Fifty years ago, abortions were still illegal in many states and Dr. Julius Wolf of Colorado stood accused of performing them. Wolf v. Col

720

orado,43 decided by the Supreme Court on June 27, 1949, opened a legal debate about what the legal system should do when law enforcement violates the Fourth Amendment. The main question in that debate was whether prosecutors should be permitted to use illegally seized evidence in court.44

The Denver police suspected Dr. Wolf, who was an obstetrician, of performing abortions.45 Without any warrants, representatives of the District Attorney went to Dr. Wolf's office, took him into custody and searched his office.46 During the search, they seized his daybooks, which recorded the patients who consulted him.47 From this information the prosecutor obtained leads, questioned former patients, and was able to build his case.48 Dr. Wolf appealed to the United States Supreme Court claiming that the patient information taken from his office should not have been used against him because state officials violated his Fourth Amendment rights.49

While Wolf is not as well known as other Supreme Court cases, its central issue has been the touchstone of a debate around the so called "exclusionary rule,"50 which prevents a prosecutor from using illegally seized evidence. By 1914, the Supreme Court had ruled that such evidence could not be used in federal court trials.51 By the time the Supreme Court heard the Wolf case, however, there was a difference of opinion among the states as to whether the rule excluding evidence applied to state trials.52

In a 6-3 opinion, Justice Felix Frankfurter reasoned that the Constitution did not necessarily require the exclusion of the evidence from

721

Wolf's trial53 even though the Fourth Amendment was a fundamental right that applied to the states, and even though Dr. Wolf's rights were therefore violated.54 Justice Frankfurter suggested that civil lawsuits and "the internal discipline of the police, under the eyes of an alert public opinion,"55 were enough to deter police from illegal searches. In short, the Court ruled that Dr. Wolf's rights were violated but the police could still use the evidence obtained to convict him.56 The dissenting Justices took issue with that result, fearing that without excluding the evidence, there was effectively no sanction at all against police who had clearly violated the law.57

Dissenting Justice Murphy, who was critical of Justice Frank-furter's belief, wrote that "[s]elf scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for...