Mises Wire

The Supreme Court’s New Attack on the Fourth Amendment

Supreme Court building

Last month, the Supreme Court issued an opinion regarding the case of Edward Strieff. In this opinion, the majority of the Court argued that it is constitutional for a police officer to detain someone without suspicion and demand their identification in order to see if they have any outstanding arrest warrants. (Or, more accurately, they consider such a search illegal, but will still accept in court the evidence obtained via the illegal search.)

The facts of the case are as follows: An anonymous tip to police claimed that “drug activity” was taking place at a South Salt Lake City residence. Narcotics Detective Douglas Fackrell monitored the property over the course of a week. He considered the number of people making brief visits to the residence to be indicative of drug dealing. He observed Edward Strieff leave the residence, followed him to a nearby parking lot, and detained him. He forced Mr. Strieff to provide his identification and contacted the police dispatch, who informed him that Mr. Strieff had an outstanding arrest warrant for a traffic violation. Detective Fackrell then arrested Mr. Strieff and, upon conducting a search incident to his arrest, found methamphetamine and drug paraphernalia, and he was charged with drug possession.

Mr. Strieff argued that this evidence should be suppressed, as it could not have been obtained without Detective Fackrell’s illegal stop. The Utah Supreme Court agreed with Strieff. But instead of allowing the state of Utah to hold their police to a higher standard, the US Supreme Court reversed their decision.

For anyone familiar with the Supreme Court, this should come as no surprise. Far from defending the US Constitution and its limits on government power, one could more accurately describe the role of the Court as providing the federal government with the veneer of having checks-and-balances, and to construct arguments, no matter how implausible, to justify its patently unconstitutional activities. There are, happily, exceptions to this, but they are precisely that: exceptions. Indeed, the Strieff decision is merely the latest in a long train of abuses from which the following lessons should be clear.

The Greatest Enemy of the Fourth Amendment is the War on Drugs

To read the decisions of the Court regarding the Fourth Amendment, which prohibits the government from conducting unreasonable searches and seizures, is to read of its slow death, with drug prohibition playing a role almost every step of the way.

Consider, for example, one of the most odious developments in modern American policing: the no-knock SWAT raid. There are, on average, over 100 raids per day and the majority of them are to serve low-level drug warrants. Such a dangerous procedure inevitably has led to a huge number of botched raids, resulting in unnecessary property damage and death. It is a common law principle that officers of the law “knock-and-announce” themselves prior to the search of a dwelling in order to give the occupant time to compose himself and answer the door. The Supreme Court has created exceptions to this principle, such as the possibility that suspects could destroy drug evidence, thus providing a necessary condition to the environment that allows a raid-happy style of policing to exist. In consideration of this, it is not hard to imagine how the Strieff decision could lead to widespread pretext stops and ID-checking in order to go on fishing expeditions for evidence.

The Exclusionary Rule Protects the Factually Guilty but Does Little for the Innocent

The exclusionary rule requires that evidence obtained illegally under certain (and ever fewer) circumstances be suppressed in a criminal trial. Unfortunately, it does nothing to protect the innocent person who is illegally searched. That is, since there is no evidence of illegal activity to find on an innocent person, there is no arrest and therefore no court case in which to exclude evidence. Rather, the mechanism by which the exclusionary rule is supposed to protect the innocent is through deterring police from doing the same thing in the future.

The Court argues in Strieff that the exclusionary rule does not apply because Detective Fackrell’s illegal search was “an isolated instance of negligence” and not “part of any systemic or recurrent police misconduct.” If it were to apply, his misconduct would have to be “purposeful or flagrant” because the purpose of the exclusionary rule is to deter future police misconduct. Though this reasoning should be rejected (because misconduct is misconduct and ought to have consequences whether it was done in good faith or was flagrant), it is also completely false, as pointed out by Justice Sotomayor in her dissent. Detective Fackrell knew exactly what he was doing in checking Mr. Strieff’s ID (to find an arrest warrant so that he could search his person) and this is not an infrequent tactic of the Salt Lake City police, as acknowledged by the Utah Supreme Court, illustrating our next lesson.

The Exclusionary Rule Is Ineffective at Preventing Police Misconduct

Police are rarely punished for misconduct of this sort. And although the exclusionary rule is meant to deter police from violating suspects’ due process, it cannot really be considered a punishment, since, as mentioned above, it does not apply when police illegally search the innocent. This reveals a large gap in institutional mechanisms to ensure that police obey the law. In almost every circumstance, it is extremely difficult to punish a police officer. If their bad behavior falls short of criminal misconduct (which itself rarely results in a prosecution), then they must be disciplined internally by someone in their police department, if they are to be disciplined at all. (There are circumstances when the Department of Justice will get involved, but this is usually to reform the practices of the police department as a whole, not punish individual officers for specific incidences of past misconduct.) Although civilian oversight exists for many larger police departments, they have almost no ability to discipline officers and can only make recommendations to police management. However, counting on the police to police themselves is about as silly as counting on the government to limit its own power, which brings us to the most important lesson.

One Should Never Count on the Government to Limit its Own Power

It should be emphasized that the Court fully admits that Detective Fackrell’s stop of Mr. Strieff was in violation of the Fourth Amendment. Regardless, Justice Thomas, in his deliverance of the Court’s opinion, states, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.” In other words, whether the Constitution applies depends on an ad hoc cost-benefit analysis by nine (or rather five) unelected bureaucrats. But, to paraphrase Madison, I cannot undertake to lay my finger on that article of the Constitution which granted a right to the judiciary to override constitutional protections when they deem it expedient.

Despite the clear intent of the Framers to prevent government agents from being able to stop, detain, and interrogate anyone they please, the Court, yet again, failed to uphold the Constitution. And, according to Rothbard, this is what we should expect when the government decides the limits of its own power:

It is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government.

Image Source: Mark Fischer www.flickr.com/photos/fischerfotos/
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