Purpose, policing, and the Fourth Amendment.

• Author: Sekhon, Nirej

Fourth Amendment cases are replete with references to "purpose." Typically, these references pertain to the motivations of individual officers and occasionally to those of public institutions. That courts pay attention to purpose is unsurprising. Across many areas of law, an alleged wrongdoer's intentions are often critical to determining liability, a remedy, or both. Purpose analysis in Fourth Amendment cases, however, is surprisingly confused. The Supreme Court has, without explanation, advanced separate frameworks for analyzing purpose--objective, subjective, and programmatic. The only consistent thing about the three approaches is that they all fail to ensure that law enforcement agents behave transparently and honestly. The failure is particularly worrisome because of the increasingly salient role that purpose analysis has played in recent Supreme Court cases.

This Article contends that courts and policy makers should use purpose as an ex ante institutional design principle. This would be in stark contrast to its current role as a judicial device for ascertaining an actor's past motivations. A single enforcement bureaucracy should not be responsible for too broad a range of functions, particularly if those functions implicate very different levels of state coercion--for example, enforcing felony narcotics laws as opposed to traffic laws. Modern police departments tend to have sprawling mandates that sometimes make it impossible for policy makers and officers to differentiate and rank distinct goals. Mandate sprawl is particularly problematic because it creates opportunities for pretextual searches and seizures--police have access to a broad range of rationales to justify conduct actually carried out for impermissible motives. Were enforcement bureaucracies required to differentiate enforcement activities by purpose, it would go a long way in curing this problem.

TABLE OF CONTENTS INTRODUCTION 66 I. PURPOSE IS UBIQUITOUS IN FOURTH AMENDMENT CASES 72 A. Analysis of Officer Purpose Is Usually Objective 74 1. Individualized Suspicion Requires Objective Analysis 74 of Officers' Purpose 2. Objective Purpose Is Increasingly Central to 77 Determining if a Search Occurred 3. Many Exceptions Turn on Objective Purpose 79 B. Subjective Analysis is Occasionally Permitted 82 C. Administrative and Other Special Needs 84 II. STATE PURPOSE AND THE FOURTH AMENDMENT 90 A. Understanding Objective Purpose 91 1. Conduct Rules 91 2. Decision Rules 96 3. Accounting for Objective Purpose 98 a. Individual Versus State Purpose 98 b. Objective Purpose Mediates Between Individual and 101 Corporate Conceptions of Police Officers B. Understanding Programmatic Purpose 104 1. Purpose is a Method for Reviewing Institutional Choice 105 2. Programmatic Purpose is Stunted Means-Ends Testing 108 3. The Relationship Between Institutional Purpose and 112 Officer Purpose is Murky C. The Pragmatist's Rebuke 115 III. PURPOSE AND INSTITUTIONAL DESIGN 116 A. Criminal is Over- and Underinclusive 119 B. Pretext and Goal Confusion 121 1. Purpose and Institutional Role 122 2. A Purposive Typology of Criminal Enforcement 127 CONCLUSION 128 INTRODUCTION

Fourth Amendment cases are replete with references to "purpose." Typically, the term pertains to an individual officer's motivations for having undertaken specific acts. (1) Occasionally, it pertains to a public institution's motivations for having undertaken a policy or practice. (2) That courts pay attention to state actors' intentions in Fourth Amendment cases is unsurprising. Across many areas of law, an alleged wrongdoer's intentions are often critical to determining liability, a remedy, or both. What is surprising is how confused and inconsistent the Supreme Court's analysis of purpose is in Fourth Amendment cases. The Court uses entirely different frameworks for evaluating purpose in different kinds of cases. Not only does the Court fail to explain why it embraces different frameworks in different contexts, but the only consistent thing about these approaches is that they all fail to ensure that law enforcement agents behave transparently and honestly. The failure is particularly worrisome because of the increasingly salient role that purpose analysis has played in recent Supreme Court cases. (3)

Recent opinions exemplify the conceptual murk surrounding purpose and the Fourth Amendment. In Jardines v. Florida, the Court concluded that it was a Fourth Amendment "search" for a police officer to walk a "narcotics dog" up to the front door of a house to sniff for drugs. (4) Thus, the officer's failure to obtain a warrant beforehand violated the Fourth Amendment. (5) The Court has increasingly relied upon trespass principles to assess whether a state agent's conduct was a "search." This approach requires evaluating the state agent's purpose for "occup[ying] private property." (7) Writing for the majority, Justice Scalia concluded that the officer's purpose for approaching Jardines's front door was to conduct a criminal search. (8) The Court was careful to qualify that its inquiry into officer purpose was "objective." (9) The Court often qualifies its analysis of officer purpose in this way, noting the practical difficulties of ascertaining an individual officer's subjective intentions. (10) While the Court's analysis of purpose in Jardines bears some resemblance to state of mind in criminal law, the analogy is inapt because the assessment of purpose in criminal law requires subjective analysis. (11) As noted by the Jardines dissenters, what "objective purpose" means is unclear. (12)

The Court's framework for analyzing institutional purpose is also confused, but for different reasons. The Court's so-called programmatic-purpose inquiry has the air of doctrinal afterthought. (13) The Court casts these cases as "exceptions" to the Fourth Amendment's general requirement that there be individualized suspicion for a search or seizure. (14) For example, in Maryland v. King, the Court recently upheld suspicionless collection of DNA from arrestees. (15) The Court concluded that Maryland's legislative purpose in enacting the scheme was "administrative" as opposed to "criminal." (16) The Court credited Maryland's argument that the scheme's purpose was to enable law enforcement to accurately identify suspects for booking. (17) In dissent, Justice Scalia objected, stating that the majority ignored the most obvious purpose for the Maryland scheme: solving open criminal cases where there was a sample of suspect DNA. (18) Crediting that purpose, however, would have made it impossible to uphold the Maryland scheme because a search for criminal evidence requires individualized suspicion that the suspect committed a crime. (19) More broadly, the programmatic-purpose analysis in King bears no resemblance to the objective purpose analysis in Jardines. King bears much greater resemblance to the kind of deferential, "rational basis" review that one might see in other constitutional law contexts. This, however, is puzzling given the Court's statements in other cases that the programmatic-purpose inquiry requires a searching analysis of an actor's actual motivations. (20)

This Article offers a critical account of purpose's role in Fourth Amendment jurisprudence. First, it critiques the frameworks the Court currently uses for evaluating purpose in Fourth Amendment cases. Second, it offers a novel account of why the Court relies on different notions in the individual and institutional decisionmaking contexts. The Court's pervasive but confused reliance on purpose in Fourth Amendment cases reflects constitutional criminal procedure's awkward role mediating between criminal law and constitutional law. In each of these two fields, purpose has a long and distinct conceptual lineage. In criminal law, purpose is a form of mens rea. In constitutional law, purpose is a method of evaluating the relationship between a state's goals and the means by which it achieves those goals. (21) In Fourth Amendment cases, the Court uses purpose in a manner that echoes both approaches, but only faintly.

The typical Fourth Amendment case presents a constitutional harm as realized between two individuals, one of whom is a police officer. (22) Such "transactional framing" of disputes has generated constitutional principles that seem writ small (23)--that is, narrow rules designed for officers' conduct in the field rather than broad principles of institutional design. (24) The purpose analysis that has evolved in these cases has the air of state-of-mind analysis in criminal law. Police officers, however, are no ordinary individuals. They are state agents. The point of a Fourth Amendment suppression motion is to determine evidence's admissibility, not to punish individual officers for having behaved badly. The Court seems to recognize this by insisting that its analysis of officer purpose is objective. (25) By so insisting, the Court rejects a subjective approach that evaluates a state agent's actual motivations. But that does not explain what objective purpose means.

This Article contends that officers perpetrate a hoax of constitutional significance whenever they behave pretextually--that is, when they act on the basis of unconstitutional motives, but later claim some objective rationale for their conduct. Because objective purpose cannot screen for this kind of officer duplicity or confusion, it fails to meaningfully constrain officer conduct. Although the expression suggests a concept with roots in criminal law or torts, it has neither. Rather, it is a rhetorical device for imputing the state's broad, corporate intentionality to individual officers. This is to conceive of individual officers, vis-a-vis individual citizens, as the state incarnate. The argument is bolstered by the rare case in which the Court permits analysis of officers' subjective motivations--for example, when the Fourth Amendment violation arises from an officer-judge...