Hudson and Samson: The Roberts Court Confronts Privacy, Dignity, and the Fourth Amendment

• Author: John D. Castiglione
• Position: Professor Cynthia Lee and Eric Waldo
• Pages: 63-116

John D. Castiglione, The author currently practices at Latham & Watkins, LLP, in New York. I would like to thank all those who contributed ideas and advice, especially Professor Cynthia Lee and Eric Waldo, currently serving as clerk to Judge Ann Aldrich of the Northern District of Ohio. All errors are my own.

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The principles . . . affect the very essence of constitutional liberty and security. They . . . apply to all invasions on the part of the government and its employees of the sanctity of a man¥s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property . . . .¹

And what, other than civil suit, is the "effective deterrent" of [a police officer¥s] violation of an already-confessed suspect¥s Sixth Amendment rights by denying him prompt access to counsel? Many would regard these violated rights as more significant than the right not to be intruded upon in one¥s nightclothes . . . .²

Introduction

On July 1, 2005, the head marshal of the Supreme Court, Pamela Talkin, hand-delivered a letter to the White House, a letter which contained just three sentences:³

Dear President Bush: This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor. It has been Page 64 a great privilege, indeed, to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure. Sincerely, Sandra Day O¥Connor⁴ And just like that, the career of the first woman ever appointed to the Supreme Court came to a close.

It would be almost six months before Justice O¥Connor actually left the Court.⁵ And yet, within a matter of weeks of her departure, the Supreme Court would embark upon an extraordinary process of curtailing generally accepted Fourth Amendment protections that Justice O¥Connor would almost surely have questioned, and in one case prevented. In Samson v. California,⁶decided just weeks after Justice O¥Connor left, the Court determined that parolees may be subjected to warrantless, suspicionless searches of their person and property, by any government official, at any time.⁷ This 6-3 decision marked yet another chapter in the Court¥s recent history of declaring entire groups of individuals almost completely unprotected by the Fourth Amendment. In Hudson v. Michigan⁸-in what was a surprise to almost every observer-the Court held that the Fourth Amendment does not mandate exclusion of evidence discovered following a knock-and-announce violation.⁹ What was most surprising about the Court¥s decision in Hudson was the majority¥s willingness to call into question the central role of the exclusionary rule to Fourth

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Amendment analysis. Coming in a 5-4 decision that was re-argued after Justice O¥Connor left the Court, Justice Alito, O¥Connor¥s replacement on the Court, supplied the crucial fifth vote for the majority that O¥Connor probably would have withheld.¹⁰ And just like that, the continued vitality of one of the most well-established tenants of Fourth Amendment jurisprudence-the exclusionary rule-was back in play almost a century after it was established.¹¹

Looking back at the 2005-2006 term, Professor Erwin Chemerinsky quipped that it was a "mixed year" for criminal defendants.¹² On the contrary, 2006 was actually quite a bad year-not only for criminal defendants, but for anyone concerned with the steady tilt of the Court away from an even moderately robust interpretation of the Fourth Amendment. Along with creating yet another categorical exclusion of an entire class of individuals from meaningful Fourth Amendment protection (that being parolees in Samson), 2006 inaugurated what promises to be a years-long struggle within the Court for one of the core tenants of modern Fourth Amendment jurisprudence: the exclusionary rule. More fundamentally, the first wave of Fourth Amendment cases clearly indicated the Roberts Court¥s thinking vis-‡-vis the balance between personal privacy and government power through law enforcement.

In this article, I critique the change of course in criminal procedure chartered by the Roberts Court in these decisions. In Part I, I examine the Court¥s decision in Samson, arguing that the majority¥s decision rests on unsupportable conceptions of the efficacy of suspicionless searches and the role they play in effectuating the penological and rehabilitative goals of parole.

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While few would argue that Samson is a particularly groundbreaking decision, it is nonetheless notable for its overly broad conception of Fourth Amendment "reasonableness." In Part II, I examine the Court¥s opening salvo against the exclusionary rule in Hudson. I assert that Hudson was the first shot across the bow in what promises to be a long campaign by the "conservative" bloc of the Court¹³ to undermine, and ultimately overrule, the exclusionary rule as a remedy for Fourth Amendment violations. In Part III, I argue that the Court¥s decisions in these cases show a clear preference of a majority of the Court for the government¥s prerogatives in law enforcement to the determinant of individuals¥ legitimate expectations of privacy, dignity, and autonomy. Both Page 67 Samson and Hudson offer tantalizing clues as to the new Roberts Court¥s general theory of the balance of power, if you will, between the state and the individual, a theory which promises to carry over into the "new generation" of Fourth Amendment cases soon to come before the Court.

I Categorical Exclusion Of Parolees From Fourth Amendment Protection: Samson V. California

A Background Probationer¥s Rights Under the Fourth Amendment

In Samson v. California, the Court held, 6-3, that the Fourth Amendment does not prohibit a police officer from ¹⁴ conducting a suspicionless search of a parolee.¹⁵ The Court¥s decision in Samson was not a total surprise; the groundwork for the case had been laid five years earlier in United States v. Knights,¹⁶ where the Court endorsed a search regime for probationers that required only reasonable suspicion of criminal activity in order to search. In Knights, the Court upheld a California law providing that individuals on probation could be stopped and searched at any time during the probationary period upon reasonable suspicion of criminal activity, as opposed to the usual requirement of probable cause.¹⁷ The Court found that such searches were reasonable under the Fourth Amendment.

Writing for a unanimous Court,¹⁸ Chief Justice Rehnquist held in Knights that probation was merely one stop along a "continuum" of possible punishments facing a convicted criminal, ranging from "solitary confinement in a maximum-security facility to a few hours of mandatory community service."¹⁹ The Court used the Page 68 standard privacy versus governmental interest balancing test to assess the reasonableness of the reduced-suspicion search. The Court found first that probationers, based on their position on the "continuum," had a lowered expectation of privacy. Next, the Court held that it was "reasonable to conclude" that allowing searches of probationers on less than probable cause of criminal activity would "further the two primary goals of probation- rehabilitation and protecting society from future criminal violations."²⁰ As such, it was reasonable to subject probationers to searches, and those searches need not be supported by probable cause or a warrant. Indeed, the Court specified that the officer need not be the individual¥s probation officer; rather, any officer with knowledge of the individual¥s status as a probationer could search without suspicion.²¹

Perhaps the most notable aspect of Knights was the Court¥s holding that it did not need to resort to a "special needs" analysis to justify suspicionless searches of probationers. In Griffin v. Wisconsin, decided seven years prior to Knights...