Respect and the Fourth Amendment.

• Author: Taslitz, Andrew E.

1. INTRODUCTION: THE FOURTH AMENDMENT AS A MERE TECHNICALITY

   One question prompted this article: "Why do many minority communities experience rage at certain police search and seizure practices involving their communities' members?" (1) My apparently obvious answer: because the police act in ways that make minority communities feel disrespected. In reaching that answer, I came to recognize, however, that members of the majority also often bear the brunt of disrespectful search and seizure practices. (2) Minorities and the majority may differ in when they believe that "respect" has been shown. (3) History, philosophy, and social science converge in establishing that "respect" should nevertheless be at the center of all Fourth Amendment reasoning. (4) What "respect" is, how it is conceived of by minority versus majority communities, and what psychological and social processes lead to its loss are, however, not so obvious. Nor has it yet become clear to the United States Supreme Court what role respect-based concerns should play in Fourth Amendment analysis. (5) Those concerns have significant implications for every current search and seizure doctrine. Understanding the Court's current approach and its failures, and defending a respect-enhancing alternative, first requires an analysis of the dominant "mere technicality" vision of the Fourth Amendment. (6) That vision seems at odds with the Amendment's sweeping language:

   The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (7) The right was of central importance to our Nation's Founders. (8) It was included in the Bill of Rights that the people demanded be added to the 1789 Constitution as the price for its ratification. (9) Images of King George's troops violating "a man's castle" in search of contraband come readily to mind. (10) The brave colonists' resistance to monarchy seems embodied in this Amendment's lofty words. (11)

   Whatever noble ideals the Amendment's ringing language might seemingly inspire, however, the amendment is in practice modernly seen by many as a pointless annoyance. (12) Consider this scenario:

   Two police officers, Cagney and Lacey, pay off a local stool pigeon for information about a planned cocaine sale. The stoolie's information is vague, and he refuses to reveal his sources. Nevertheless, based on this tip, Cagney and Lacey guess that a cocaine sale will happen that night at a Water Street warehouse and set up a stakeout. Unable to see much, they choose to break in. Inside, they find not only a massive quantity of cocaine but a large shipment of illegal firearms ready to hit the street. Their elation at a job well done is quickly ended when a judge suppresses the evidence. Because the search was done without a warrant or probable cause, the trial judge barred the jury from hearing or seeing anything about the drugs and weapons confiscated by the detectives. Lacking evidence, the prosecution was forced to withdraw the case, and another dangerous criminal walked free. This image of left-wing judges allowing criminals to exploit the Fourth Amendment and other legal technicalities has long been standard fare in movies, television shows, and newspaper stories. (13) The media feeds the impression of a massive, increasingly violent crime problem. (14) That problem is portrayed as exacerbated by the helpless system's flooding of the streets with guilty men freed by wiley lawyers. (15) Recent reports of a declining crime problem have begun to combat the media-driven crime hysteria. That decline is portrayed by the media, however, as caused by new tough-on-crime measures to keep criminals behind bars, combined with the appointment of stricter judges. (16) Political campaigns embrace assaults on any judges who insist on enforcing a generous constitutional vision. (17)

   Amazingly, despite the media onslaught, a large majority of the public, according to at least one study, opposes the admission of illegally obtained evidence. (18) Yet many members of the public are swayed by the reduction of a core constitutional right--namely, freedom from unreasonable searches and seizures--to a mere annoyance obstructing justice. (19) Perhaps more importantly, the decision makers and policy advisors who decide when and how searches and seizures shall be done reduce the Fourth Amendment to a mere technicality. (20) "The criminal is to go free because the constable has blundered" is the rallying cry. (21) Academics insist that finding the truth is what trials are all about, and the Fourth Amendment must not undermine that goal. (22) Of course, some of these pundits pay tribute to the value of the Amendment, objecting only to the remedy of suppression. (23) They propose alternative remedies, however, that have either proven fruitless in the past or that are obviously politically dead-on-arrival. (24) Furthermore, they pay tribute fleetingly, in small amounts, their tone emphasizing the social calamity caused by the Amendment more than the social benefits it might bring. (25)

   The police embrace this same sort of skepticism about the Amendment's value. Police often perjure themselves at hearings to suppress evidence, a phenomenon so widespread that it has its own name: "testilying." (26) They lie when they know that they have violated the Amendment because they do not want to see the illegally obtained evidence suppressed. Nor do they want to see the Department or themselves named in a lawsuit or to be demoted because of a pattern of Fourth Amendment suppression. (27)

   And the officers know that judges usually feel the same way. (28) Judges routinely deny suppression motions when they know that the police are lying. (29) For example, the Fourth Amendment does not protect a defendant who has abandoned his property. Therefore, officers repeatedly testify that defendants suddenly and intentionally "drop" drugs while fleeing from the police, in the suspects' purported hope that they cannot thus be linked to the drugs. (30) One judge explained: "[W]hen one stands back from the particular case and looks at a series of cases ... [it] becomes apparent that policemen are committing perjury in at least some ... [of these cases], and perhaps in nearly all of them." (31) This judge admits that he nevertheless routinely accepts an officer's dropsy testimony as truthful in a particular case. Judges do so, he explains, because at some level they share the officers' attitude:

   Policemen see themselves as fighting a two-front war--against criminals in the street and against "liberal" rules of law in court. All's fair in this war, including the use of perjury to subvert "liberal" rules of law that might free those who "ought" to be jailed ... It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. (32) While police "testilying" may help to subvert Supreme Court rulings, the Court too has generally accepted the view of the Fourth Amendment as a mere technicality: "[a]fter all it is the defendant, not the constable, who stands trial." (33) Most major decisions over the last three decades increasingly stress the importance of the truth-finding function at trial. (34) The Court subjects individual citizens' Fourth Amendment interests to a "balancing" test in which the needs of law enforcement get ever-heavier weight. (35) Though there are important exceptions, and though the Court occasionally praises the Amendment's value, the general trend is to narrow the scope of Fourth Amendment rights and, even when such rights are recognized, to narrow still further when the exclusionary remedy will be available to enforce the Amendment. (36)

   The burden of this narrowing vision of Fourth Amendment rights has often fallen hardest on racial and ethnic minorities. (37) The Court purports to endorse a colorblind search and seizure jurisprudence. (38) Ignoring race, however, is often precisely what promotes racial disparities. (39)

   To use the most obvious example, an officer who stops a car going one mile over the speed limit has probable cause to believe that the law has been violated. If the officer only stops those speeders who are African American, or Hispanic American, or Asian American, that seems wrong. It unsettles American notions of equal treatment. (40) Yet if, as the Court suggests, we cannot consider the officer's racial attitudes and assumptions, or perhaps not even whether his conduct has a disparate racial impact, this "racial profiling" is tolerated by the state. (41) The Court's position on profiling and the role of race in search and seizure decisions is a bit more complex and subtle than my claim here that they entirely ignore race. (42) But the bottom line point would be unchanged by exploring those complexities: a colorblind search and seizure jurisprudence often results in racial injustice. (43)

   Racial minorities indeed have less trust in the police than do whites. (44) The level of trust is lowest among young African American males. (45) Even minority group members who may trust their local police are probably more troubled by invasive police conduct than are many whites. (46) Many minority group members are attentive to, and especially worried by, police violence, the stopping of young black males with little justification, or searches of homes without warrants. (47) Correspondingly, they worry that police offer minorities inadequate and unequal protection from crime. (48) Minority communities yearn for a police force that promotes community safety while valuing community rights. They agitate for a police...