The Incredible Shrinking Fourth Amendment

Posted on December 03, 2018 in Uncategorized

The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches. The Fourth Amendment says:

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.

Starting with the Supreme Court's decision in Terry v. Ohio, in 1968, police have been allowed to stop a person without probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law. Under the exclusionary rule, the government is not allowed to use in court evidence obtained in violation of the Fourth Amendment. The exclusionary rule exists to deter officers from breaking the law.

Decisions in recent years have weakened the exclusionary rule and the Fourth Amendment. For example in Herring v. United States, the Court held that the exclusionary rule does not apply where the officer did not act intentionally to violate the Fourth Amendment, but was merely negligent. In other cases, the Court has said that that the exclusionary rule does not apply where the officer has an objectively reasonable belief that his or her conduct is legal. The Supreme Court also held in Navarette v. California, that an uncorroborated anonymous tip of reckless driving can be the basis for police to stop a car, where police observe no violation of the law. And just last term, in Heien v. North Carolina, the Supreme Court held that if an officer makes a reasonable mistake of law, such as where the officer stops a person for something that is not a crime, that there is no violation of the Fourth Amendment at all.

Those who support greater protection of privacy were encouraged by three decisions that seemed to stem the downward flow. In Rodriguez v. United States, the Court prohibited officers from detaining a person longer than necessary to investigate a crime and issue a ticket other than one for which the stop occurred without independent articulable reasonable suspicion to support the investigation of the new crime. In Missouri v. McNeely, the Court held that in most cases police would need to get a warrant before getting a blood alcohol test in a drunk driving case. And in Riley v. California, the Supreme Court held that police must get a warrant before searching a cell phone of an arrested person and limited the reach of the search incident to arrest exception to the Fourth Amendment's warrant requirement.

However, this week the Supreme Court added two more opinions to the list of cases chipping away at the Fourth Amendment. In Utah v. Strieff, on Monday, the Supreme Court ruled that if an officer arbitrarily stops a person without cause, and then discovers a warrant for the person, that the evidence seized pursuant to the arrest will not be suppressed. Justice Thomas' opinion for the Court held that the discovery of the warrant "attenuated" the Fourth Amendment violation so as to not require the exclusion of the seized evidence. Justice Sotomayor wrote a blistering dissent, noting that:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

And today the Supreme Court decided Birchfield v. North Dakota. Birchfield upheld statutes that make it a crime to refuse to submit to a warrantless breath alcohol test after a person has been arrested, even where police officers have plenty of time to obtain a warrant. Birchfield held that a breath alcohol test is a valid "search incident to arrest" despite language in Riley limiting the scope of searches incident to an arrest, and despite the holding of McNeely, that if police can get a warrant before getting a blood alcohol test, then they have to get a warrant. Justice Sotomayor dissented from this portion of the Birchfield decision, joined by Justice Ginsburg.

Perhaps the only redeeming aspect of the Birchfield decision, is the "compromise" according to Justice Thomas' dissent from it, finding that a blood alcohol test is not a valid search incident to arrest and does require a warrant. As a result of this part of the opinion, from this date forward, any consent obtained for a blood test based on an advice form stating that refusal carries a possible jail sentence is invalid, and any hospital blood test from an unconscious suspect or one who is suspected of manslaughter obtained without first getting a warrant is likely subject to suppression. Additionally, with respect to blood tests, if the driver consented based on flawed advice regarding possible jail, a defense to driver license suspension for failing the blood test could be raised. The state and federal governments may not make it a crime to refuse a blood alcohol and/or drug test.

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