Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World

• Author: Jeffrey Bellin
• Position: Assistant Professor of Law, Southern Methodist University, Dedman School of Law.
• Pages: 1-48

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Crime-Severity Distinctions and the

Fourth Amendment: Reassessing

Reasonableness in a Changing World

Jeffrey Bellin

ABSTRACT: A growing body of commentary calls for the Supreme Court to

recalibrate its Fourth Amendment jurisprudence in response to technological

and social changes that threaten the traditional balance between public

safety and personal liberty. This Article joins the discussion, highlighting a

largely overlooked consideration that should be included in any

modernization of Fourth Amendment doctrine—crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of

Fourth Amendment analysis. Yet, in evaluating contested searches and

seizures, current Fourth Amendment doctrine ignores a key determinant of

reasonableness, the crime under investigation. As a result, an invasive

search of a suspected murderer is, legally speaking, no more or less

reasonable than the same search of a suspected jaywalker.

Through the years, the primary objection raised by the Supreme Court and

academics to altering this status quo is that a crime-severity variable would

be unworkable. While a handful of scholars continue to argue for an

increased role for crime severity in Fourth Amendment jurisprudence, this

powerful objection remains unanswered. In an effort to fill this void in the

debate, and introduce crime severity as a critical component of a revitalized

search and seizure jurisprudence, this Article proposes a concrete framework

for incorporating crime severity into Fourth Amendment doctrine. The

Article then explores specific applications of the framework to highlight the

constructive role crime-severity distinctions can play in defining the

constitutional parameters of searches and seizures in the modern era.

 Assistant Professor of Law, Southern Methodist University, Dedman School of Law. I

would like to thank Orin Kerr, Fred Moss, Paul Ohm, Meghan Ryan, Bill Schroeder, Chris

Slobogin, Jenia Turner, and Eugene Volokh, as well as the participants in the SMU Criminal

Justice Workshop, for their comments on an earlier draft of this Article. Donna Bowman and

Octavio Dominguez contributed valuable research assistance. The Article benefitted as well

from the patience and support of Catherine Zoe Garrett, and the financial support of the SMU

Dedman School of Law and the Fred E. Tucker Endowment for Faculty Exc ellence.

2 IOWA LAW REVIEW [Vol. 97:1

INTRODUCTION .......................................................................................... 3

I. TRANSSUBSTANTIVE FOURTH AMENDMENT DOCTRINE ............................. 7

A. THE SUPREME COURT’S REJECTION OF CRIME-SEVERITY

CONSIDERATIONS ................................................................................. 8

B. THE WORKABILITY JUSTIFICATION ...................................................... 13

C. EXCEPTIONS TO TRANSSUBSTANTIVE DOCTRINE ................................... 15

D. SUMMARY .......................................................................................... 17

II. CALLS TO ALTER THE TRANSSUBSTANTIVE STATUS QUO ........................ 18

III. INCORPORATING CRIME SEVERITY INTO FOURTH AMENDMENT

DOCTRINE ................................................................................................ 22

A. IDENTIFYING THE RELEVANT CRIME .................................................... 23

B. THE CASE AGAINST CASE-SPECIFIC SEVERITY DETERMINATIONS ............ 25

C. CRAFTING A CRIME HIERARCHY .......................................................... 26

IV. APPLYING THE CRIME-SEVERITY FRAMEWORK .......................................... 34

A. INCORPORATING CRIME SEVERITY INTO GENERAL REASONABLENESS

ASSESSMENTS ..................................................................................... 34

B. CRIME SEVERITY AND BRIGHT-LINE RULES .......................................... 35

C. OBJECTIONS TO OBSCURING BRIGHT-LINE RULES ................................. 37

D. THE IMPORTANCE OF CRIME-SEVERITY DISTINCTIONS IN THE

MODERN ERA ..................................................................................... 39

1. The Importance of Crime-Severity Distinctions for

Evaluating Particularly Intrusive Searches ............................. 40

2. The Importance of Crime-Severity Distinctions for

Applying the “Reasonable Expectation of Privacy” Test

to Relatively Uninvasive Searches ........................................... 44

CONCLUSION ........................................................................................... 47

2011] CRIME-SEVERITY DISTINCTIONS 3

INTRODUCTION

Few people objected when Los Angeles police relied on the

controversial practice of familial DNA searches to identify a suspect in the

“Grim Sleeper” serial-killer case.1 For those who might worry about the

implications of such searches, the reporting noted that the California

Attorney General only permitted familial DNA searches in investigations of

“major violent crimes,” such as murder or rape.2 Slightly more controversy

attended the Governor of New York’s signing of legislation that prohibited

New York City police from creating a massive computerized database of

persons they stopped, even if those persons were not charged with any

crime.3 The police claimed the database helped crack cases, but the

Governor explained that he could not condone the practice absent evidence

that it stopped “very serious crime, or . . . acts of terrorism.”4 Finally,

condemnation was nearly universal when a Pennsylvania school district,

suspecting the theft of some school-issued laptop computers, activated

software in the computers that surreptitiously took pictures of students and

their families in their homes.5 The technology helped locate the missing

1. See David R. Cameron, DNA Matching Technique Is a Powerful Tool for Police, HARTFORD

COURANT, July 13, 2010, http://articles.courant.com/2010-07-13/news/hc-op-familial-

searching-cameron-071320100713_1_offender-profiles-dna-expert-new-dna-technique (noting

that “even critics of aggressive approaches to gathering DNA . . . applauded how familial

searching was used in the Grim Sleeper case” and quoting an attorney with the American Civil

Liberties Union of Southern California, who commented, “From our perspectiv e, if you are

going to use familial DNA searching, this is the kind of case you should use it for” (internal

quotation marks omitted)); Elizabeth Joh, The Grim Sleeper and DNA: There’s Much To Be Concerned

About, L.A. TIMES, July 10, 2010, http://articles.latimes.com/2010/jul/10/opinion/la-oe-joh-

dna-20100710 (cautioning that the “investigative triumph” of the Grim Sleeper case should not

“blind us to the dangers of expanding genetic surveillance”); Jennifer Steinhauer, ‘Grim Sleeper’

Arrest Fans Debate on DNA Use, N.Y. TIMES, July 9, 2010, at A14 (reporting expert consensus that

“[t]he arrest in the protracted, gory case could settle the internal debate among lawmakers and

the law enforcement agencies across the country” regarding familial DNA searches) .

2. Press Release, Cal. Att’y Gen.’s Office, California’s Familial DNA Search Program

Identifies Suspected “Grim Sleeper” Serial Killer (July 7, 2010), available at http://ag.ca.gov/

newsalerts/release.php?id=1945 (explaining that under internal guidelines, familial DNA

searches “are only allowed in major violent crimes when there is a serious risk to public safety

and all other investigative leads have been exhausted”); see Editorial, A Yellow Light to DNA

Searches, N.Y. TIMES, July 13, 2010, at A24; Post-Standard Editorial Board, DNA Searches: Partial

Matches Can Help Solve Crimes—If Used Carefully, SYRACUSE.COM BLO G (July 15, 2010, 6:15 PM),

http://blog.syracuse.com/opinion/2010/07/dna_searches_partial_matches_c.html. For an

extensive discussion of familial DNA searches, see Sonia M. Suter, All in the Family: Privacy and

DNA Familial Searching, 23 HARV. J.L. & TECH. 309 (2010).

3. Ray Rivera & Al Baker, Police Cite Help from Stop-and-Frisk Data in 170 Cases, N.Y. TIMES,

July 17, 2010, at A15.

4. Id.

5. John P. Martin, Judge Orders L. Merion To Halt Moni toring, PHILLY.COM (May 15, 2010),

http://articles.philly.com/2010-05-15/news/24960045_1_webcams-laptops-injunction (noting

the school district’s acceptance of responsibility and apology to students and their families).