Zealous Officers and Neutral Magistrates: the Rhetoric of the Fourth Amendment

• Publication year: 2022

43 Creighton L. Rev. 1019. ZEALOUS OFFICERS AND NEUTRAL MAGISTRATES: THE RHETORIC OF THE FOURTH AMENDMENT

ZEALOUS OFFICERS AND NEUTRAL MAGISTRATES: THE RHETORIC OF THE FOURTH AMENDMENT

David E. Steinberg (fn*)

TABLE OF CONTENTS

INTRODUCTION.......................................... 1020

I. THE ORIGINAL UNDERSTANDING: A LIMITED FOURTH AMENDMENT........................... 1021

II. FOURTH AMENDMENT RHETORIC: DANGEROUS LAW ENFORCEMENT, IMPARTIAL MAGISTRATES ....................... 1023

A. The Premise: Responsible Magistrates, Irresponsible Cops............................. 1023

B. "Unbridled Discretion"........................ 1026

C. Placing The Magistrate Between The Police And Citizens............................ 1027

D. The "Hurried Judgment" Of Law Enforcement Officers......................... 1029

E. Summary ....................................... 1030

III. THE REALITY OF JUDICIAL INVOLVEMENT: LIMITED REVIEW AND EXPERIENCE ............ 1031

A. Limited Review of Warrant Applications...... 1031

B. Magistrate Qualifications..................... 1033

C. Review On Appeal.............................. 1035

D. Summary ....................................... 1037

IV. THE RISE OF POLICE PROFESSIONALISM....... 1037

A. Police Training................................ 1038

B. Police Review And Discipline.................. 1041

V. THE EMERGING RHETORIC OF POLICE RESPONSIBILITY.................................. 1042

CONCLUSION............................................. 1045

INTRODUCTION

Words matter. Language influences how we view legal issues.(fn1)Through word choices, courts attempt to shape our approaches to legal problems.

With respect to the Fourth Amendment,(fn2) language certainly matters.(fn3) Fourth Amendment doctrine repeatedly suggests that police officers are not trustworthy and are likely to abuse their discretion. As a result, courts must intervene to protect citizens from law enforcement. To make this distinction between courts and law enforcement, judges describe law enforcement as "zealous officers" and describe courts as "neutral magistrates."(fn4)

In a variety of ways, Fourth Amendment opinions suggest this contrast between neutral, detached, and principled magistrates on the one hand, and zealous, competitive, and unrestrained law enforcement officers on the other hand. Recently, the Supreme Court of the United States invoked this comparison to invalidate a search and seizure. In the recently decided Arizona v. Gant,(fn5), the Court relied on this rhetoric to invalidate a warrantless search of a car. According to the Gant majority, the Fourth Amendment addresses "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects."(fn6)

This Article suggests that the Court's distinction between "neutral" magistrates and "zealous" police officers is seriously misleading. The rhetoric does not account for the training and accountability of law enforcement. Nor does this rhetoric acknowledge that some magistrates lack training, and that warrants receive limited appellate review.

Part I of this article reviews the limited Fourth Amendment envisioned by the framers of the amendment. The Supreme Court's current Fourth Amendment activism does not find support in the original understanding of the amendment. Through the use of rhetoric, the Court has attempted to create a broad role for judges in regulating searches and seizures.

Part II examines the Supreme Court's rhetoric, which distinguishes between reliable magistrates and untrustworthy police officers. In describing magistrates, the Court's Fourth Amendment opinions have used words such as "neutral," "impartial," "objective," and "deliberate." In contrast, the Court has described law enforcement agents as "zealous" officers, who make "hurried judgments." According to the Court, only the magistrates who review warrant applications can protect the public from law enforcement officers seeking to violate privacy through their "unbridled discretion."

Part III questions the Court's unconditionally positive description of the judicial officers who review warrants. Magistrates often receive boilerplate warrant applications, which they routinely approve in a matter of minutes. The Supreme Court has shown no inclination to intervene, subjecting probable cause findings only to the most deferential review. Such minimal review is perhaps inevitable because some magistrates have no formal legal training.

Part IV demonstrates that the Court's cynical portrayal of law enforcement officers is similarly misguided. The Court's rhetoric does not recognize the rise of professional police departments. In these departments, officers receive considerable Fourth Amendment training and face discipline when search and seizure mistakes result in an exclusion of evidence.

Part V identifies a few opinions suggesting a different rhetorical approach to the Fourth Amendment. In these opinions, the Court has recognized an officer's training and experience as positive factors. But these few opinions remain isolated exceptions, with most Fourth Amendment opinions continuing to describe law enforcement officers as incompetent and dangerous.

I. THE ORIGINAL UNDERSTANDING: A LIMITED FOURTH AMENDMENT.

Before examining the rhetoric of the Fourth Amendment,(fn7) this Article considers the very limited role for the amendment envisioned by the framers - far more limited than the scope of the amendment today. Because the text and history do not support expansive interpretations of the Fourth Amendment, the Supreme Court of the United States has needed another source for its authority. The Court has turned to rhetoric.

The Fourth Amendment conceived by the framers was a narrow document. The language of the amendment does not explicitly invoke broad judicial involvement. The amendment prohibits "unreasonable searches and seizures,"(fn8) without offering any definition for the term "unreasonable." The amendment also provides that "no Warrants shall issue, but upon probable cause."(fn9) Notably, the amendment does not mandate that a neutral and detached magistrate must issue the warrant, although modern Fourth Amendment decisions regularly emphasize such a requirement.(fn10) This omission is particularly noteworthy, because warrants in the eighteenth century sometimes were not issued by judicial officers.(fn11) In short, the language of the Fourth Amendment did not explicitly mandate wide ranging judicial regulation of searches and seizures.

Beyond the plain language, additional historical evidence suggests the framers intended that the Fourth Amendment would be a narrow document. First, the Fourth Amendment applied only to the federal government, not to the states.(fn12) Yet in early America, the overwhelming majority of criminal searches and prosecutions took place under state law.(fn13) Given the very limited scope of federal law enforcement, the Fourth Amendment was relevant only on rare occasions.(fn14)

Even at the federal level, the framers did not intend that the Fourth Amendment would regulate a broad variety of searches and seizures. As I have written elsewhere, the framers "were focused on a single, narrow problem-physical invasions of houses by government agents."(fn15) The framers sought to address this problem with a bright line rule: "Before entering a house, law enforcement officers typically would need to obtain a specific warrant."(fn16) With respect to other types of searches and seizures, the Fourth Amendment was simply inapplicable.(fn17)

The modern Fourth Amendment is nothing like the framers' original conception of the amendment. Instead, the Supreme Court has applied the amendment to a wide variety of searches, many of which have nothing to do with a physical invasion of a house. For example, the Court has applied the Fourth Amendment in cases involving traffic checkpoints,(fn18) random drug tests,(fn19) and searches at schools.(fn20)

Neither the text nor the history of the Fourth Amendment authorizes broad judicial regulation of searches and seizures. For the judicial branch to exercise such power, judges must find another source for this authority. As a result, the Supreme Court has turned to rhetoric.(fn21) Time and again, the language of Fourth Amendment opinions describes a contrast between neutral and objective magistrates, as opposed to zealous and overreaching law enforcement officers.

II. FOURTH AMENDMENT RHETORIC: DANGEROUS LAW ENFORCEMENT, IMPARTIAL MAGISTRATES.

A. The Premise: Responsible Magistrates, Irresponsible Cops.

The Supreme Court of the United States rhetoric describing judicial integrity and abusive police officers has deep roots in Fourth Amendment(fn22) doctrine. A particularly clear statement of this concern appeared as early as 1948, in a majority opinion by Justice Louis Brandeis. In Johnson v. United States,(fn23) Justice Brandeis wrote:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.(fn24)

Justice Brandeis'...