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
SUMMARY

Adding to the Fourth Amendment "reasonableness" debate, Professor Bellin argues that the Supreme Court should factor in a new variable-crime severity-to determine whether a search is reasonable. After advocating for its adoption, the article presents a framework for incorporating crime severity into Fourth Amendment doctrine.

 
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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 COURTS 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).

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