Quasi-inquisitorialism: accounting for deference in pretrial criminal procedure.

• Author: Laurin, Jennifer E.
• Position: II. The Supreme Court's Quasi-Inquisitorialism A. Police in the Quasi-Inquistorial Pretrial Sphere 1. Search and Seizure Sets the Stage b. Professional and Organizational Expertise through Conclusion, with footnotes, p. 815-846

2. Professional and Organizational Expertise

   In so stating, the Court in Sitz relied heavily on another, quasi-inquisitorial theme: the conception of law enforcement activities, particularly at the operational rather than individual level, as rooted in professionally and organizationally imparted expertise. (147) Thus, with regard to effectiveness review, the Court declared:

   Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers. (148) Consider as well the Court's more contemporary statement in its recent decision on the use of drug-sniffing dog alerts in warrant applications. Permitting such use without resort to "inflexible" or "technic[al]" evaluation of the dog's reliability, and instead deferring to departments' own choices in certification or training regimes, the Court expressed confidence that "law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources." (149) These sentiments cast the police and prosecutors who invented the Michigan sobriety checkpoint as law enforcement technocrats, knowledgeably and properly incentivized (more so than courts) to pursue legitimate criminal problems through reasonable means.

   It is well to point out that much of this is of a piece with the observation, made by others, that the Court's Fourth Amendment decisions have tended increasingly to elevate the venerable police "hunch" to the status of expertise. (150) Indeed, even in Brignoni-Ponce and Brown, in which the Court rejected the states' suggestion that police could stop without articulating the basis for their suspicion, the Court emphasized that an "articulable" basis might arise from any number of factors, and that reviewing courts must consider that trained law enforcement agents may be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer." (151) But the exclusionary rule cases demonstrate that the point here is somewhat different, highlighting not so much the Court's deference to individual officers' "commonsense" through learned "judgments and inferences about human behavior," (152) but rather its conception of the law enforcement profession as having developed and systematically inculcated expertise beyond the ken of judiciary. If the individual officer is concededly engaged in the "often competitive enterprise of ferreting out crime," (153) the organizational and professional vehicles for imbuing her with training and expertise might still mitigate that bias.

   In the Fourth Amendment context, this conception of professional and organizational expertise and an organizational incentives structure that adequately internalizes accuracy values as a substitute for judicial scrutiny is nowhere more pervasive than in contemporary exclusionary rule jurisprudence. The notion surfaced in sporadic, if spirited, fashion, in the first two decades of the life of the good faith exception to the exclusionary rule, adopted in United States v. Leon. (154) Indeed, debates concerning the good faith exception, as reflected in Leon itself, were heavily concerned with whether the exclusionary remedy was necessary in order to bring about or ensure professionalized, well-trained, well-incentivized police departments; the Leon majority, however, was confident that an exception from exclusion for "objective[ly] reasonable [ ]" police error would not undermine a regime of "police training programs" that "are now viewed as an important aspect of police professionalism." (155) In Hudson v. Michigan, the Court viewed police training and discipline as sufficiently entrenched that entire Fourth Amendment rules--there the "knock-and-announce" rule--could be cleaved from the remedial scheme with no consequence: "[M]odern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect." (156) But Hudson was just the precursor to the Court's incorporation of presumed police professionalism into the contours of the exclusionary rule--and, indeed, identifying its absence as a basis for relief. Thus, in Herring v. United States, the Court announced, seemingly categorically, that the exclusionary rule would be unavailable unless police officers were shown to act culpably in violating the Fourth Amendment--unless, that is, "recurring or systemic negligence" on the part of a law enforcement organization could be shown. (157)

3. The Prosecutor as Investigative Supervisor

   A final, more recently emergent quasi-inquisitorial feature of the Court's search and seizure cases is worth noting: the Court's conception of prosecutorial review of police action as a discretion-checking mechanism. Although prosecutors have long played some role in pre-charge investigation, the investigative and prosecutorial functions in American criminal law have traditionally (excepting again federal prosecutors) been conceived of as separate--indeed, sharply segregated. (158) This is in contrast to many Continental systems, where prosecutors are, either formally or practically as a consequence of light magisterial oversight, monitors of police investigative work. (159)

   And yet the Court, particularly in its Fourth Amendment jurisprudence, has increasingly taken note of the oversight role sometimes played by prosecutors in criminal investigations--for example, in providing advice or even authorization with regard to searches or warrant applications (160)--and has even gone so far as to suggest that prosecutorial approval could insulate police error from scrutiny. Thus, in Messerschmidt v. Millender, in which the Court found that qualified immunity shielded an officer sued for swearing to and executing an allegedly overbroad warrant, the Court pointed to review and approval by both the officer's supervisor and a prosecutor as "pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause." (161) In so holding, Messerschmidt signaled the Court's approval of a posiuon already staked out by several lower courts. (162) Indeed, while the Court's decision in Bums v. Reed still governs the question of whether prosecutors may enjoy absolute immunity for their conduct in participating in and advising police investigations (they do not), (163) in the recent case of Pottawattamie County v. McGhee the several states argued as amicus, and at least three Justices exhibited sympathy to the view, that the rule should be revisited in light of the benefits of prosecutorial involvement including "efficient and productive" evidence gathering and avoiding "inadvertent" violations of suspects' rights. (164)

   2. The Pervasiveness of Quasi-Inquisitorialism

      The Court's increasingly express reliance on a putatively bureaucratically and professionally well-calibrated law enforcement profession to self-monitor its legal discretion has not been limited to the search and seizure context. Rather, and perhaps as a consequence of the Court's preoccupation with cabining exclusionary remedies, the Court's harkening to internal police discipline and rulemaking as an alternative mechanism of constraint in the inquisitorial pretrial sphere has expanded beyond the Fourth Amendment context to other doctrinal areas implicated by evidence gathering and evaluation.

      In some such cases the Court has, as in Brigoni-Ponce and Brown, seemingly relied on record evidence that bureaucratic control and professionalism was systemically lacking in order to constrain police discretion through constitutional doctrine. Exemplary is Missouri v. Seibert, in which the Court held that the Fifth Amendment barred admission of Mirandized statements made after an initial round of questioning in which Miranda warnings were deliberately not given--the so-called "question-first" interrogation tactic. (165) Apparently crucial to the Court's determination that the fruits of that initial unwarned interview must be suppressed was its extended discussion of the extent to which "question-first" had become a feature of police training and supervision, reflected in not only the individual interrogating officer's training but also guidelines and model training promulgated by national and state-level professional organizations such as the Police Law Institute. (166) "The upshot," Justice Souter wrote for the Court, was "a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy." (167) That rebutting the assumption of professionalism was a consequence of circumstance is further highlighted by the result in United States v. Patane, decided the same day, holding that the physical fruits of unwarned interrogations need not be suppressed consistent with the Fifth Amendment. (168) Dissenting in that case was Justice Souter, who expressed confusion over the disparate outcomes. (169) A plausible explanation for the votes of at least some of the Justices, such as Justice Kennedy who concurred in Patane and Seibert, was the differing records before the Court in relation to institutionalized legal flouting in the form of police training and supervision. (170)

      More often, however, as in the Fourth Amendment context, the Court's conception, or presumption, of bureaucratic and professional checks has served to insulate police investigative activities. This has repeatedly been the case in the context of the Court's...