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.
