Computers, urinals, and the Fourth Amendment: confessions of a patron saint.

• Author: LaFave, Wayne R.

It was a stark and dormy night(1)

This is neither a Lyttonish(2) Spoonerism,(3) a Jabberwockian(4) galimatias, nor an embarrassing typo missed by an astigmatic editor. It is instead a carefully chosen exordium, one expected to perform well its proper function, that is to say, "to awaken the interest of . . . readers."(5) The two adjectives in that perplexing proem were uppermost in my mind on the evening in question, when I sat in my office putting the wraps on this article. "Stark" because it was a night during which I had managed to revise the piece to accomplish a "blunt unadorned style or treatment"(6) of my subject; and "dormy" because it was a night in which my labors would allow me, as with a golfer so situated,(7) to bring my efforts to a favorable conclusion.

Outside my office, on the other hand, Lytton's own exordium(8) was apt. And thus, just as others have done,(9) I can appropriate it here: It was a dark and stormy night. Those circumstances--beneficial in so many ways to those in the legal profession(10)--persisted, and finally the storm increased in its violence and intensity. Then a bolt of lightning struck just a few feet from my window. Both I and my computer, on which I had been pounding the entire evening, were jarred about a foot off our respective pedestals. The computer--but fortunately not me-- emitted an intense green glow for about a minute, causing me to fear that the poor thing had passed on.(11) However, it had not only survived, but also appeared to have enjoyed a moment of complete independence from me. At the top of the screen, in that space I had reserved for the yet unchosen title of my article, there now appeared a line of typescript reading Computers, Urinals, and the Fourth Amendment: Confessions of a Patron Saint.(12) Ignoring the machine s self-serving sense of priorities, I quickly realized that I had been provided with that which had heretofore eluded me: a nearly perfect(13) title for this article. It performed the essential function of leaving anyone who scrutinized the Review's table of contents virtually in the dark about the subject matter of this piece!

At least the title indicates that the article is somehow concerned with the Fourth Amendment, though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student.(14) And over that substantial period, I have peppered or salted--depending on your taste -- the law reviews with a not insubstantial number of Fourth Amendment commentaries.(15) Replowing the same ground for so long presents special challenges, which is why in recent years I have had to resort to grotesque phantasmagoria,(16) polysyllabical sesquipedalianism,(17) amphigoric analecta,(18) and even serendipitous cyberspatial sciolism(19) in an effort to present a fresh approach.

But the other words in my title are less revealing. For example, who is this patron saint there referred to? It is me, as I discovered back in 1988 when, while digging through the advance sheets for Fourth Amendment minutiae, I discovered a case in which I was characterized as the patron saint of the Fourth Amendment. (20) I rather liked that appellation and looked forward to springing it on my colleagues and friends at the earliest opportunity. Unfortunately, in the intervening years I have never found just the right opportunity to work it into the conversation, which is why my sainthood has until now remained a deep, dark secret.

Perhaps I should have left it that way, for what I originally perceived as a significant milestone in my professional development has become instead a millstone around my neck. The title "patron saint" is not a mere honorific, for such a person is charged with the awesome responsibility of supporting and protecting the person or thing that is the patronee. But if you look at what has happened during my watch, it is apparent that I have been a resounding failure in this regard. Certainly my fellow Fourth Amendment buffs are of that view, for the very titles of their writings lament a "shrinking"(21) (indeed, "incredibly shrinking"(22) and even "dying"(23) Fourth Amendment that has been subjected to such " attack,"(24) "emasculation,"(25) "dismantling,"(26) "pruning," (27) "erosion,"(28) (even " steady erosion "(29), "freezing,"(30) descent,"(31) "fall"(32) and even "junking"(33) that it has become a "casualty"(34) or "victim"35 to which we can "say goodbye,"(36) at least absent much needed "resuscitating."(37) And that brings me to the word "confessions" in the present article's title; it refers to my forthright acknowledgment here and now that I have failed miserably in my tutelary obligations.

I tried! There is, after all, my own trail of law review articles (feeble attempts, perhaps, to prevent or at least forestall the unfortunate consequences chronicled above). And there is also my multivolume Search and Seizure treatise, the work that actually prompted the conferral of sainthood upon this humble servant. Published in its three-volume first edition in 1978, its four-volume second edition in 1987, and its five-volume third edition in 1996, the treatise by its growth might be thought to reflect a corresponding broadening of Fourth Amendment rights. But in fact, as noted earlier, those rights seem to be diminishing.(38) The growth of the treatise, then, says more about the phenomenon of treatise-writing(39) than about the Fourth Amendment itself: clearly, I have been writing more and more about less and less.

This movement to less and less, it seems to me, is attributable to several disturbing trends in the Supreme Court's Fourth Amendment jurisprudence. For one thing, the varieties of police conduct to which the Court deems the Amendment to be applicable are unrealistically circumscribed. Second, as to that conduct to which the Amendment does apply, the evidentiary grounds--whether probable cause in the traditional sense or some lesser standard--have been softened or diminished unnecessarily. Warrants are now deemed unnecessary in a great many instances in which no exigency is present, but without a principled explanation for abandoning the earlier doctrine that prior judicial approval of searches and seizures is strongly preferred. Finally, the principal device for enforcing the Amendment, the exclusionary rule, has been narrowed unrealistically because of a rather distorted view by the Court of the deterrence function.

I have elaborated on each of those four trends on prior occasions,(40) and shall not undertake to do so again here. Rather, I shall follow a more focused approach now, as I want to examine closely two cases from the Term ended in 1995 that illustrate the course that the Supreme Court has taken. These cases, Arizona v. Evans(41) and Vernonia School District 47J v. Acton,(42) involved, respectively, the fourth and second of the trends briefly described above. In Evans, the exclusionary rule was pulled back one more notch by a holding that it does not apply in the case of an illegal arrest attributable to the negligence of a court clerk.(43) In Acton, drug testing without individualized suspicion was upheld upon a purported showing of need that, in fact, was much weaker in both kind and degree than that deemed sufficient in the Court's earlier decisions.(44)

For those of you still perplexed about the words "computers" and "urinals" in this article's title, I can now also reveal that the first of these cases concerns nonperformance at a computer, and the second nonperformance at a urinal. How? Read on!

COMPUTERS, CLERKS, AND THE EXCLUSIONARY RULE

In New Jersey v. T.L.O.,(45) the Supreme Court unequivocally established that public employees other than law enforcement officers are also subject to the proscriptions of the Fourth Amendment. But this decision gave rise to another question that had theretofore rarely surfaced in the appellate cases:(46) Even if such persons are subject to the Fourth Amendment, does it follow that the exclusionary rule is an appropriate sanction when they violate the Fourth Amendment? Because the search at issue in T.L.O. was then found to be reasonable, the Court carefully avoided expressing any opinion on this question as to high school administrators, even though that issue had prompted the original grant of certiorari.(47)

That certain nonpolice government actors are not in such need of deterrence as to be appropriate objects of the exclusionary sanction was a critical assumption by the Supreme Court in developing the "good faith" exception to the exclusionary rule. In United States v. Leon,(48) holding admissible evidence obtained in execution of a facially valid search warrant grounded in an affidavit later found to be lacking probable cause, the Court ruled that "the extreme sanction of exclusion" was "inappropriate."(49) There was no need to deter the police where, as here, they had in good faith relied upon the warrant, and there was also no need to deter the warrant-issuing judiciary, for "there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment."(50) By similar reasoning, the Court later held in Illinois v. Krull(51) that exclusion was unnecessary when police searched in reasonable reliance upon statutory authorization. This time the Court stressed that there was "nothing to indicate that applying the exclusionary rule to evidence seized pursuant to the statute prior to the declaration of its invalidity will act as a significant, additional deterrent"(52) on legislators enacting such statutes. This "Leon framework," as the Court put it, was next used in the first...