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Robin K. Magee
Excerpted from: Robin K. Magee, The Myth of the Good Cop and the Inadequacy of Fourth Amendment Remedies for Black Men: Contrasting Presumptions of Innocence and Guilt, 23 Capital University Law Review 151-219, 161-189 (1994) (340 Footnotes)
The good cop paradigm is defined by a false myth of the police officer *161 as a law-abiding citizen who is chiefly, if not totally, motivated by law enforcement interests when appropriate and who can be trusted to behave within constitutional parameters. The paradigm is both explicitly and implicitly revealed in Fourth Amendment jurisprudence. It is an explicit premise of the exclusionary rule and is explicitly revealed through the Supreme Court's deliberate and articulated blindness to bad cops in cases raising issues of pretext. The paradigm is less apparent but nonetheless operative in the Court's increasing deference to police judgments and its expansive allowance of discretionary authority to police. It is likewise revealed in the heightened esteem the Court assigns to police activities and decisions, which is evident in the Court's emphasis on “law enforcement” interests and the relative diminished value the Court places on magistrates' decisions.
In the first part of this section, I discuss how the good cop paradigm is revealed in the exclusionary rule cases. In the second part of this section, I discuss how the paradigm is exposed in the Court's pretextual doctrine. In the third part, I explore how the Court's deference and allowance of discretionary authority in cases fleshing out the Terry doctrine and defining administrative searches reveal a good cop paradigm. Finally, I examine how the paradigm is demonstrated through the Court's elevation of the cop to a position on par with that of judicial officers.
A. The Exclusionary Rule Cases
Exclusionary rule cases expose a good cop paradigm. The exclusionary rule requires that evidence seized by government agents in violation of a defendant's Fourth Amendment rights be excluded from a criminal trial to determine the defendant's guilt. The Court imposed exclusion in Mapp v. Ohio as the sole remedy available to a defendant involved in a criminal trial. The Court adopted exclusion as the sole remedy because of its presumed broad deterrence value, which the Court believed had not been achieved by the local enforcement of other remedies.
The Court's presumption of the exclusionary rule's effectiveness is based on a presumption of good cops, that is, a cop who is solely or chiefly motivated by law enforcement interests. Only if cops are good will they be deterred by the exclusion of evidence at trial. If a cop does not desire or is indifferent towards criminal prosecution, exclusion embodies no deterrent value. As the Court in Terry v. Ohio noted, “[r]egardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal.” Oftentimes, these officers who do not desire trial or are indifferent to it are motivated by something other than the desire to advance the accepted interests of law enforcement. Exclusion does not effect an officer who is engaged in his activity merely to harass, intimidate, or otherwise satisfy her personal desires. Exclusion, then, if it can be presumed effective, fails to contemplate or address “bad cops.” However, the remedies the Court explicitly rejects in opting for exclusion did have the potential to address bad cops.
A discussion of the trilogy of Wolf v. Colorado, Mapp v. Ohio, and United States v. Leon, demonstrates the development of the good cop paradigm in cases discussing the exclusionary rule. In Wolf, the Supreme Court refused to impose the exclusionary rule on the states as part of its decision to impose Fourth Amendment requirements on them. In rejecting exclusion, the Court observed that there were other remedies “which, if consistently enforced, would be equally effective” as exclusion. The remedies the Court considered included civil actions for damages against the searching officer, against one who procures the issuance of a warrant maliciously and without probable cause, against a magistrate who acts without jurisdiction in issuing a warrant, against persons acting with a warrant who exceed the authority granted thereby, and against one who issues a general search warrant or a warrant unsupported by affidavit. The Court also recognized the power of a court to keep an officer for contempt for violating the parameters of a warrant. Likewise, the Court noted the privilege of a private citizen to use force to repel an unlawful search.
In Mapp v. Ohio, the Supreme Court partly overruled Wolf and made the exclusionary rule applicable to the states. The Court reasoned that this extension was required to protect the integrity of the courts and to deter police officers from engaging in unconstitutional procedures. The Court explicitly rejected the remedies considered and allowed review in Wolf, and further reasoned that the exclusionary rule was an essential component of Fourth Amendment rights and the only effective way to protect such Fourth Amendment interests was by removing the desire to ignore it.
In United States v. Leon, the Court jettisoned the judicial integrity rationale, and established the deterrence of police officers as the sole rationale for the exclusionary rule. The Court focused the deterrence only on police officers, and not judicial officers, which could result in a broader application of the exclusionary rule than to good cops only.
In Leon, the Court also carved out the good faith exception to the exclusionary rule, which underscored the Court's focus on deterrence and, thus, further exposed the good cop paradigm. The good faith exception to the exclusionary rule allows unconstitutionally seized evidence to be admitted into a criminal trial when the police officers have reasonably relied on an informed warrant issued by a detached and neutral magistrate. This reasonable reliance is construed as “good faith,” and disallows the application of the exclusionary rule, even though Fourth Amendment standards have been violated.
The Court's conscious rejection in Mapp of the alternative remedies discussed and approved in Wolf evinces the Court's subscription to the good cop myth. These remedies would have addressed both good and bad cops had the Court adopted them and required their enforcement. For example, the remedies of internal police review, self-help against unauthorized police action, and various civil remedies including actions against magistrates for issuing unsupported or otherwise unconstitutional warrants, would have effected broader deterrence. These remedies might deter the cop who does not care that his activities may result in a criminal conviction against the person whose privacy may have been intruded. Several of these remedies impose penalties on officers prior to or in the absence of criminal proceedings. In the case of self-help, the remedy can be immediate and prevent the Fourth Amendment injury entirely. Indeed, the remedies which focus on magistrates avoid a focus on cops altogether whether they be bad or good. Especially, in light of the good faith exception to the exclusionary rule, the scope of these remedies clearly appears broader than exclusion.
The failure of the Court to adopt any of these alternative remedies suggests either that the Court did not contemplate cops not being motivated by law enforcement interests or that the Court believed that bad cops comprised only a small insignificant minority of cops. The consistency in the Court's examination of a cop's subjective mental state in Leon further reveals the good cop paradigm. The Court in Leon allows the goodness (or reasonableness) of cops to be the basis for denying a defendant the sole practical remedy for a Fourth Amendment violation buy in the main the Court does not tease out a cop's lack of sincere & pure motivations for requiring an exception to the Court's rule adopting exclusion. Given the Court's capacity to discern and give legal significance, to an officer's particular subjective intentions. When their admirable, good faith, the Court's failure to tease out and give legal significance to cops' bad subjective state, in most instances involving a “Fourth Amendment violation by requiring something more than exclusion evidences not a lack of ability to do in the Court's part to identify and address the bad cop but a lack of desire to do so. Moreover, the Court's adoption of a good faith exception in Leon further suggests that the Court failed to consider the bad cop. The good faith exception demonstrates that the Court is not seriously interested in exploring whether a cop has bad motives. If the cop has relied on a validly issued search warrant, the officer is not subject to any deterrent or other punitive action despite his possible bad motives. Thus, if an officer has conducted a search merely to harass or indulge a vendetta, the defendant has no remedy if the officer was able to provide more than a “bare bones affidavit” that persuades a magistrate to find probable cause and to issue a warrant. Thus, the exclusionary rule cases demonstrate the Court's focus on good as well as a refusal to face the bad cop.
B. Pretextual Activity
The approaches taken by the Supreme Court in cases raising issues of pretext further advance the good cop paradigm. The Supreme Court's pretextual doctrine for purposes of Fourth Amendment analysis underscores the Court's single focus on the law-abiding cop by demonstrating the Court's refusal to make the bad cop legally relevant.
The Court has adopted two approaches in analyzing pretextual Fourth Amendment activity: the hard choices and the case by case analysis approach. The Court has never, however, used the pretextual doctrine to invalidate activity proscribed by the Fourth Amendment under either approach. The first of the Court's approaches, the hard choices approach, refuses to recognize pretextual activity if the officer can justify her actions under a Fourth Amendment standard. If an officer can proffer a legally sufficient explanation for his actions, notwithstanding his actual illegal motivations, the Court ignores the actual motivations of the officer. In this context, the bad character of the police officer is not relevant to the Court's analysis, and his actual motivations cease to exist for purposes of Fourth Amendment scrutiny.
Under the second approach, the case by case analysis approach, the Supreme Court claims to scrutinize pretextual motivations where the pretext has been “fabricated.” Fabricated pretext exists where an officer proffers a legally sufficient reason for engaging in Fourth Amendment activity but is unable to provide factual support for the reason proffered. In theory, this approach should provide some protection against pretextual activity. The case by case approach then, like the hard choices approach, erases the bad cop and masks the evil motivations or bad faith of police officers so that only the properly motivated officer remains “standing” and therefore, available for Fourth Amendment scrutiny. The bad cop becomes absolutely invisible for purposes of Fourth Amendment protections.
New York v. Burger discloses the improbability that the Court will ever invalidate a search based on pretextual activity and explains why and how the Court, to date, has yet to invalidate a search based on pretext. Burger can be read as a case involving fabricated pretext. Yet in Burger the Court was unwilling to declare the pretextual activity unconstitutional. Rather, the Burger Court resisted the recognition of pretext and then validated the search notwithstanding the probability of pretext. The Court's response to the pretext in Burger makes it improbable that the Court will ever invalidate a search because of pretext. Burger showed the Court's ability to avoid confronting and then invalidating a search based on pretext. It also demonstrates the Courts ability to always read fabricated pretext as legal pretext and, thus, avoid the legal recognition of the bad cop. The employed two tactics in Burger in avoiding a funding of pretext. One, the Court simply refused to examine police motivations, and, thus, avoided the best evidence of pretext. The Court was also able to avoid becoming aware of pretext by resting its analysis of an abstracted, objective officer who acted and thought differently from the actual officers involved in Burger. In this situation, a good cop is constructed where the officers were less than good. Second, the Court, faced with patent evidence of unlawful motivations, privileged and exaggerated a hint of lawful motivations and judged the constitutionality of the search based on this lawful constitutional animus. The cumulative effect of these readings is that a fabricated pretext will be read like a legal pretext; the bad cop will go undetected and the constitutional analysis will be premised only on a good cop.
In Burger, the Court upheld the warrantless search of a junkyard that had ostensibly been performed pursuant to a state regulatory scheme. The defendant, Burger, made two allegations of pretext in challenging the constitutionality of the search. Burger first claimed that the statutory scheme that purported to authorize the search itself was pretextual because it had no truly administrative purpose but was “designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property.” Second, Burger claimed that the particular search to which he was subject was also pretextual because it was being executed by officers who were more concerned with furthering a criminal investigation than furthering the statute's alleged administrative purpose.
The dissenters, Justices O'Connor, Marshall, and Brennan, agreed with the claims of pretext raised by the defendants. The dissent argued that the alleged inspection was a subterfuge for a criminal investigation and, therefore, could not be upheld in the absence of a warrant. In the dissenter's minds, the government had fabricated a pretextual justification for conducting activity in which it felt it could not otherwise constitutionally engage.
Thus, the dissent found that the administrative scheme itself was constitutionally defective: “The fundamental defect of Section 415-a5 is that it authorizes searches intended solely to uncover evidence of criminal acts.” The dissenters further noted that the search under scrutiny was not performed pursuant to the administrative scheme outlined by the statute even if the administrative scheme was capable of passing constitution muster. Rather, the dissent characterized the intrusion as “an ‘administrative search’ which violated no administrative provision and had no possible administrative consequences.” The dissent observed that the alleged administrative search was broader than that which the administrative scheme authorized, and included searches and seizures of items that were not contemplated by the administrative provision. Even after the only conceivable violation of the administrative scheme was uncovered by the inspecting officers, the alleged administrative search continued until evidence of defendant's criminal activity was secured. Thus, the dissenters found that fabricated pretext existed at both the level of the administrative scheme's design and at the level of its execution by the searching officers. The dissenters concluded then that the alleged administrative purpose of the statute and the officers activity was just an unconvincing smokescreen for the real reason for the “administrative” provision--criminal law enforcement--an improper activity for the state with a warrant supported by probable cause.
The majority, however, refused to recognize the fabricated pretext so clearly seen by the dissent. Rather, the majority found that the administrative scheme was justified to attack a serious social problem and, although an objective of the scheme might overlap that of criminal laws. Thus, the majority concluded that the police officers were justified in searching the junkyard, although the administrative scheme had the same objective of the criminal scheme, and the officers who performed the search traditionally served the purposes of criminal law enforcement. In addition, the Court's discussion acknowledged that the inspection yielded the same result as a criminal investigation of the junkyard would have--discovery of stolen goods and an arrest.
The Burger Court, however, failed to scrutinize the motivations of the police officers or determine their reasons for engaging in the inspection. Thus, the Court did not determine whether the police officers conducting the search were motivated merely by a need to carry out the administrative scheme or by a desire to effectuate a law enforcement function. Rather, the majority, in the face of patent evidence of unlawful law enforcement animus, privileged the actions of the officers which were consistent with the administrative authorization. The Court emphasized the police actions of checking the inventory books, which were consistent with the administrative scheme rather than those actions that followed, such as checking the serial numbers of the inventory in the junkyard, which were not authorized by the administrative scheme and seemed to be squarely in the realm of a criminal investigation.
Even under the majority's reading in Burger, indicia of the good cop coexisted with evidence of the bad cop; the former motivated by constitutional administrative purposes, the latter by law enforcement interests. Thus, the Court selected the good cop as the basis of scrutiny, despite strong evidence that at a minimum, the unconstitutional criminal law enforcement interests dominated many of the officers' decisions.
Under the majority's analysis, fabricated and legal pretext lose their distinguishing qualities. Fabricated pretext can easily be construed as a situation involving merely legal pretext, which does not require invalidation. Although police, and the government, more generally, may lack the factual support Fourth Amendment justification, the Court may nonetheless validate the Fourth Amendment intrusion by ignoring the lack of support or by privileging and exaggerating the evidence of supportive indicia of a lawful animus, the effect of this two-legged subterfuge is that fabricated pretext will escape constitutional scrutiny and the bad cop will be made legally invincible. As the Burger opinion demonstrates, the Court vigorously attempts to read situations involving strong evidence of fabricated pretext as legal pretext, thus affirming the erasure of the bad cop from Fourth Amendment jurisprudence. Concurrently, Burger also demonstrates the Court's intent to premise Fourth Amendment jurisprudence on the good cop, even if he has to be constructed out of the penumbra of his sinister colleague.
C. Deference, Discretion, and Esteeming Police and Their Decisions
In other areas of Fourth Amendment jurisprudence, the Court has been less explicit in its dedication on the good cop paradigm, but has nonetheless upheld the good cop paradigm. Generally, the Court has advanced the paradigm more broadly throughout Fourth Amendment jurisprudence by exhibiting faith, if not reverence, for police and their decision making. There exist three ways in which the Court has advanced the good cop paradigm. Two of the three ways are illustrated through its allowance of discretionary authority and its increasing deference to police and their decision making. The third way the Court has advanced the paradigm is by exalting police decision making, sometimes by equating it with the unhurried, deliberate decision making of magistrates and, at other times, by allowing the police judgment to suffice as the Fourth Amendment's justificatory standard. In the first part of this section, I discuss discretion and deference. In the second part, I discuss those cases otherwise exalting police officers and demonstrating a good cop paradigm.
1. Discretion and deference: defined
A close relationship exists between discretion and deference, and often some interplay between them. I define discretion as the latitude allowed police in defining the scope and nature of their activities, including, but not limited to, the manner in which police exercise their law enforcement functions. In Fourth Amendment jurisprudence, discretion is demarcated by the area of activities in which the police are not subject to constitutional restraint or where the constitutional restraint is loose. I define deference as the presumption of rectitude that accompanies police activities and decisions. In Fourth Amendment jurisprudence, deference is recognizable by the Court's failure to scrutinize, or conscientiously review, the decisions of police in situations where risks of constitutional violations, threats to liberty, or otherwise ill-considered decision-making are present.
Deference and discretionary authority in Fourth Amendment jurisprudence sometimes intersect and overlap. The Court's deference may lead the Court by intent or by effect to allow greater discretionary authority. The Court's allowance of discretionary authority may necessarily involve a level of deference. Once an officer chooses among the available alternatives, the Court refrains from scrutinizing the exercise of discretion to underscore the officer's freedom to choose. That is, if the Court does not defer to an officer, and overturns her decision, the officer, in effect, is not free to exercise discretion. An effect of the interplay between discretion and deference is entrenchment of the good cop paradigm. Whenever discretion and deference are both active in Court decisions, the bad cop may be doubly insulated from Fourth Amendment accountability.
Reading the Court's extension of deference and increasing allowance of discretionary authority as a subscription to the good cop paradigm is stands on a more fundamental assumption: The Supreme Court would not extend deference and discretionary authority to cops unless the Court believed that police officers could be trusted to advance, or act consistently with, constitutional dictates. This premise rests on a more fundamental belief that the Court is interested in upholding and guarding constitutional standards and is, therefore, properly viewed as a conscientious guardian of constitutional standards. The Supreme Court's pronouncements are presumed to be designed to advance constitutional requirements. Discretion and deference represent dynamics within the Supreme Court's Fourth Amendment jurisprudence which assign police front-line and, sometimes, sole responsibility to advance constitutional protections. In extending deference and allowing discretion, the Supreme Court must then be presumed to believe that the recognized level of constitutional protection will be advanced, and not thwarted, by police during these unsupervised expanses--that officers will act consistently with constitutional standards and not in violation of them. Thus, in extending discretionary authority and deference to police officers, the Court presumes a good cop and not a bad cop.
a. Discretion
In recent years, the Court has permitted broad grants of discretion to police officers. One of the areas of Fourth Amendment jurisprudence where these increasing grants are evident is in those cases defining the parameters of Terry v. Ohio. In these cases, the Court has been generous to police both in identifying and scrutinizing the quantum of evidence necessary for a Terry invasion and in delimiting the point at which the Court will recognize that a Terry stop has occurred.
i. identifying and scrutinizing the quantum of evidence under Terry as an expansion of discretion
United States v. Sokolow illustrates the Court's generous grant of discretion in defining and scrutinizing the quantum of evidence necessary for a Terry invasion. The case thus operates to expand the discretionary authority available to police officers. In Sokolow, the Court found that the police had reasonable suspicion to seize a defendant even though such suspicion was developed with the aid of a “drug courier profile.” In the dissent, Justice Marshall objected to the use of these profiles when establishing the particularized suspicion required to formulate a reasonable suspicion, criticizing their “chameleon-like” nonprobative qualities. These chameleon-like qualities are demonstrated by the inclusion of all of the following factors: first to deplane, last to deplane, and deplaning in the middle. In addition to these factors, the following “suspicious” circumstances were also included in informant profiles: the purchase of one-way tickets, the purchase of round-trip tickets, and flying nonstop flight, and changing planes. The effect of including such an exhaustive list of suspicious behaviors in the profile is to reduce the profiles to no standard of suspicion at all. Anyone might be found suspicious given these broad profile characteristics. Ultimately, the decision whether to detain any person becomes a matter of police discretion if the profiles are allowed to be used as a premise for the intrusion. In allowing the use of drug courier profiles, the Supreme Court thereby legitimizes the discretionary decision making of police officers using the profiles.
Likewise, in Alabama v. White, the Court found that there was reasonable suspicion to detain a suspect where the information provided by an informant consisted of a skimpy report of wholly innocent activity. In his dissenting opinion, Justice Stevens observed that the evidence proffered to establish reasonable suspicion in White was readily available, easily fabricated, and unprobative of criminal activity. Stevens, unlike the majority, recognized the inevitability of the misuse of the reasonable suspicion standard in the hands of a bad officer. Stevens observed that an unscrupulous cop could merely allege an anonymous informant reported a person, an assertion that would go unchallenged, and then report easily observable facts about that person in order to justify a Terry search. Since the officer's story would likely go unchallenged, a bad cop motivated by a personal vendetta or animosity could subject an innocent person to an unwarranted search. According to Stevens, the resultant effect of White is to teeter Fourth Amendment protection on the presumption of police rectitude:
[U]nder the Court's holding, every citizen is subject to being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed. Fortunately, the vast majority of those in our law enforcement community would not adopt such a practice. But the Fourth Amendment was intended to protect the citizen from the overzealous and unscrupulous officer as well as from those who are conscientious and truthful. The decision makes a mockery of that protection.
In the hands of a bad officer, the result of White is vulnerable to abuse. Only in the hands of scrupulous officers does White provide any protection to citizens or place any parameters on the bad cop. The Supreme Court, the self-appointed and generally recognized chief protector of constitutional protections, must be presuming a good cop paradigm. Otherwise, it would be failing its responsibilities to provide protection to Fourth Amendment privacy interests.
ii. lowering Terry and expanding the sphere of uncircumscribed police behavior
In its Fourth Amendment jurisprudence delimiting the applicability of Terry, the Court has expanded the freedom of police to engage in activity that is not subject to constitutional strictures, and thus expanded the police's discretionary authority exposing the operation of the good cop paradigm. Florida v. Bostick involved the interrogation of a black man in a dragnet-type bus depot sweep. The Court reformulated the Terry standard for this bus depot context and found that the reformulated standard, whether a “reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounters,” had not been violated, and thus, no Terry stop had occurred. The Court found that no violation occurred even though the police displayed badges, brandished weapons, wore police attire, and stood in the aisle so as to require the defendant to brush past them if he tried to leave the bus. By finding that the Terry standard had not been met, the Court expanded the range of seemingly intimidating activities that police could engage in before they would become subject to even the minimum Terry standard. As a result of Bostick, police can now choose among a variety of intrusive tactics and strategies that had previously been unavailable to them without being subject to Fourth Amendment standards.
Although the Court maintained that its decision in Bostick “followed logically from prior cases and [broke] no new ground,” the Court's decision in Bostick did expand the scope of police discretionary authority. The rearticulation of the standard of whether one feels “free to leave,” or whether one feels “free to terminate an encounter with police where one has no intention of leaving” is a supportable extension or reformulation of the Terry standard. The application of the standard to the facts of Bostick, however, represents a considerable expansion of police discretionary authority.
The Court has held in previous cases that the facts presented in Bostick would have sufficiently indicated an intimidating show of authority and thus demonstrated a Terry intrusion. In Michigan v. Chesternut, for example, the Court recognized that the display of a weapon contributes to a coercive environment giving rise to Terry protections. In United States v. Mendenhall, the Court noted that the presence of several officers in police attire and a display of weapons by them would constitute a show of authority evoking Fourth Amendment protections. In rejecting this line of cases, the Bostick Court thus, increased the range of actions in which the police can engage without being subject to constitutional restraint.
Moreover, the Bostick Court permitted racial considerations that previously had been resisted as legitimate indicia of reasonable suspicion. Although the majority suggested that the people approached were randomly selected, Justice Marshall noted in his dissent that the choice was laden with racial considerations. Marshall further observed that race was often the unspoken, determining factor that lead police officers to identify a person as a suspicious suspect and he suspected that race determined the detaining officers' actions in Bostic specifically. The Court in Terry purported to circumscribe the police behavior in order to avoid racial harassment; Bostick, as an extension of Terry, did not even pay lip service to such an exercise. The effect of Bostick is to expand the ability of the police to consider and employ race as a factor in directing their activities. Thus, the Court continues to expand discretionary authority of police by allowing race to factor into their decisions without de-legitimizing the exercise of discretion resulting therefrom.
b. Deference
Through the Supreme Court's increasing deference and solicitude towards police judgments, the Court has promoted the good cop paradigm. The increasing deference shown to officers by the Court esteems the judgment of police officers, enhances their image, and legitimizes their decision-making as presumptively correct or presumptively non-offensive.
The case of Michigan v. Sitz presents an example of the Court's increasing deference to police procedure and judgments. In Sitz, the Court considered the appropriate police procedure to be employed at sobriety checkpoints in order to achieve Michigan's touted goal of policing drunk driving and preventing resulting highway fatalities. The Court in effect deferred to police judgment and ruled that the sobriety checkpoints operated by the State of Michigan were a reasonable exercise of the state officials' authority. The Court validated the search even though the statistical effectiveness of the procedure was extremely low. The statistical evidence reviewed by the Court demonstrated that 126 cars were stopped by the officers, but only two persons were arrested as a result. The majority stated that these numbers showed only a 1.5% effectiveness rate. In dissent, Justice Stevens maintained that the sobriety checkpoints offered no “net benefits.”
The Supreme Court opted for the sobriety checkpoints even though possibly more effective alternatives were readily available from the Court. Several justices proffered alternative approaches that might be more effective to eradicate drunk driving, but the majority refused to require them in place of the approach used by the State of Michigan. Thus, the Court deferred to the collective judgment of the police. In the final analysis, the Court admitted that the principle reason to allow a sobriety checkpoint was because the procedure had been selected by law enforcement officials of the State of Michigan.
Similarly, in Colorado v. Bertine, the Court deferred to the judgment of police departments and hinted in a later case, Florida v. Wells, that it might be willing to defer to the judgment of individual officers in determining the validity of inventory searches. In Bertine, the Court validated an inventory search primarily because it was performed pursuant to established government procedures. The Court implied that where such established procedures were followed it would not scrutinize the procedures, and the searches would be per se “reasonable under the Fourth Amendment.” The Bertine Court refused to review less intrusive alternative means of satisfying the putative state interests claimed to be furthered by the warrantless search. Likewise, the Court explicitly refused to examine the facts of the inventory search for pretext. Thus, Bertine further exposes the Court's deference to police judgment. The Court's validation of the inventory procedure in Bertine was completely premised on the Court's deference to past formalized police decisionmaking. Only if the Court believed that this decisionmaking would not tend towards abrasive procedures could the Court premise constitutional protection on it. The Court, then therefore, contemplates the good cop devoid of the abusive tendencies of the bad cop.
2. Esteeming police and their decision-making
Finally, the Supreme Court has advanced the good cop paradigm by esteeming police and their decision making. In this way, the Court demonstrates a reverence for police officers that cloaks them in presumptive rectitude. The Supreme Court has proceeded from a warrant analysis when examining the constitutionality of government procedures which intrude upon an individual's legitimate expectation of privacy or liberty. In doing so, the Supreme Court has determined that a decision made by a judicial officer is often superior to the on-the-street and often hurried judgment of a police officer. Yet, in an increasing number of cases, the Supreme Court has not recognized a distinction, but has equated police decisions to magistrate's decisions, or has otherwise ruled that police deliberations are tantamount to a magistrate's deliberations. In other instances, the Court simply fails to require magistrate review where the Court believes magistrate review will inhibit police work. This demonstrates the Supreme Court's exaggerated reverence for police work. Moreover, the Supreme Court has allowed police determinations to supplant those of judicial officers. In sum, the Court has, in many instances, esteemed police judgments to at least the level of magistrates, and by doing so, the Supreme Court has bestowed upon police judgments the highest level of presumptive rectitude reverence.
a. Equating the decision-making of police officers with those of magistrates
In California v. Acevedo, the Court equated the decision-making of police officers with that of judicial officers. In Acevedo, the Supreme Court ruled that closed containers in automobiles were subject to the automobile exception, even though probable cause preexisted the placement of the container inside the automobile. Submitting the closed container to the automobile exception meant that the container could be searched without a warrant and based solely upon probable cause.
In explaining why the automobile exception should be applied and the warrant requirement excused, the Supreme Court reasoned that the effect on privacy would be minimal, because when the police had determined that probable cause existed, the warrant would be “routinely forthcoming in the overwhelming majority of the cases.” Thus, the Court accepted a notion that a police officer's decision is a correct foreshadowing of a magistrate's review. The Acevedo Court then erased the differential significance between the decisionmaking of the magistrate and police officer. The Court diminished the significance of the magistrate's deliberation and exalted the import of the police. When Acevedo is read in light of cases such as Illinois v. Gates, wherein the Court has in effect declared that a magistrate's probable cause determinations are presumptively correct, it becomes clear how cases such as Acevedo have the effect of esteeming police and their judgments by according them a high degree of presumptive rectitude.
b. Police determinations equated with the justificatory standard.
In certain situations where the justificatory standards of a warrant and probable cause are not required or the justificatory standards have not been met, the Supreme Court has substituted police decision-making for the justificatory standard. In doing so, the Supreme Court exalts and esteems police officers while presumptively legitimizing their decision-making.
In Illinois v. Rodriguez, the Court allowed the reasonable nature of the police officers' belief to be the basis for an otherwise unconstitutional search. In Rodriguez, the Court determined that the police relied on invalid third party consent before searching the home of the defendant and seizing drugs and drug paraphernalia. However, because the officers had reasonably relied on the invalid third party consent, the Court declared that the search and resulting seizure was reasonable under the Fourth Amendment. Thus, the Supreme Court made police subjectivity the deciding factor when determining the validity of a Fourth Amendment intrusion. It was not the actual consent that justified the intrusion but the reasonableness of the officers' belief as to the validity of the consent that justified the intrusion. Thus, the officers' misinformed but sincere decision-making served as the justificatory standard. In this case, by making the reasonableness of their judgments, rather than the pre-existing constitutional standard, the measure of constitutionality, the Supreme Court has extended to police officers the highest degree of legitimacy.
c. Hostility towards magistrates: warrantless searches
The rapidity and consistency with which the Court reduces the number of circumstances requiring the warrant advances the good cop myth as well. The warrant requirement has “become riddled with exceptions” and many question whether it still exists as the preferred Fourth Amendment requirement. The failure of the Court to uphold the warrant requirement has advanced the good cop paradigm in three ways. First, by erasing the relative differential between the quality of a magistrate's judgment and that of police. In some instances, it has become inconsequential or perfunctory, for purposes of determining the constitutionality of police activities, whether a magistrate has given prior approval. Second, the Court advances the good cop paradigm under warrantless searches by allowing emerging considerations such as the touted law enforcement interest and the limits of police understanding or execution to dominate when determining whether to validate warrantless intrusions. The Court, in these circumstances, gives prominence to the police and thereby advances their actions as presumptively legitimate. Third, warrantless activity broadens the discretionary activity of police by making a Fourth Amendment intrusion the “exclusive dominion of police authority” rather than, at most, a shared function between the magistrates and the police.
i. inconsequential magistrates/equated police
Acevedo exemplifies how the Court's adoption of a warrant exception promotes the good cop paradigm. As discussed earlier, the Court in Acevedo considered the magistrate's determination as perfunctory and inconsequential once the police had made their probable cause determination because magistrate review would almost certainly be forthcoming once the police had determined probable cause existed. This characterization of the magistrate's review erases the relative differential in quality between the police and the magistrate, thus enhancing the image of police. Historically, the magistrate's decision was considered superior because it was formed through more deliberation, infused with less self-interest, and better informed in some cases. Thus, the Court's increasing validation of warrantless searches generally results in diminishing the importance of the magistrate's decision while enhancing the importance of the police and their judgments.
ii. privileging law enforcement interests
The Supreme Court has made law enforcement interests, the limits of police comprehension, and police inclination to behave within constitutional restraints the central considerations in its recent Fourth Amendment jurisprudence. The Court's consideration of these interests invariably results in an exception to the warrant requirement. The effect of the prominence of these considerations is to catapult police and their interests to a privileged status in the Court's deliberations. This, in turn, adds value to considerations of the police and extends to them a high degree of respectability.
In Acevedo, the law enforcement interest was central to the Court's decision to extend the automobile exception to situations where probable cause had preexisted the placement of the item in the automobile. The Court extended the exception and did not require magistrate review because the law enforcement interest would be fettered. Moreover, the Court decided that the exception should be extended because the police would nonetheless feel compelled to forego magistrate review and existing constitutional requirements--even if the existence of the exception was not formalized.
In United States v. Leon, the Court faced similar considerations when it allowed the limitations of an officer's ability to understand constitutional protections to circumscribe Fourth Amendment protections. In Leon, the Court considered whether the police would be able or likely to scrutinize a magistrate's probable cause determination when analyzing whether a good-faith exception to the exclusionary rule should be adopted. The Court identified the limits of the deterrence rationale at the limits of the police ability to scrutinize a magistrate's probable cause determination. The Court, thereby, allowed the police to once again inform, if not determine, the appropriateness of an exception to the warrant requirement. In turn, the Court's approach also exalts police and contributes to the good cop paradigm.
iii. discretionary allowances of warrantless searches
Finally, warrantless searches contribute to the discretion granted to police, and to the presumption of rectitude or the high level of trust they can presumably be extended. Under a warrant per se analysis, the magistrate or her designee, determines whether an interest protected by the Fourth Amendment can be invaded. The magistrate confirms the existence of probable cause based on the facts alleged in the affidavit provided by a police officer. Under this scheme, the responsibility for ensuring the requisite constitutional protections prior to an intrusion is shared by the police and the magistrate. In warrantless searches, the responsibility for ensuring that Fourth Amendment protections are afforded to citizens is in the complete province of the police. By consolidating total authority in the police and erasing the protective role of the warrant prior to search, the Court again advances the good cop model by trusting the police with the corrupting influence of absolute authority.
**Associate Professor of Law, Hamline University School of Law. B.A. 1983, University of Michigan-Dearborn; J.D. 1986, University of Michigan Law School.
