Downgrading the Fourth Amendment's Warrant Requirement
The text of the Fourth Amendment announces a right to be free from unreasonable searches and seizures. For many years, reasonableness was equated with a warrant. If the police got one, their conduct was, for the most part, lawful. If they didn't, they ran the risk of acting unconstitutionally. However, the warrant “requirement” has been substantially downgraded by the judicial creation of numerous exceptions that grant the police wide latitude to forcibly search and seize without first obtaining pre-authorization. In all, the Court has named six such exceptions.
Search Incident to a Lawful Arrest, Plain View, Automobile, Consent, Exigency, and Special Needs are all areas in which exceptions to the warrant requirement have been carved out by the Court. In each of these areas, police officers armed with adequate antecedent knowledge or the proper set of precursor facts can engage members of the public without first justifying the encounter to a neutral and detached magistrate. Perhaps more significant than the sheer number of exceptions created is the expansive authority granted by each.
For example, under Plain View, a law enforcement officer can observe and seize an item without implicating the Fourth Amendment if (1) the observation is made from a lawful vantage point, (2) the officer has lawful access to the item, and (3) the contraband nature of the item is immediately apparent to the officer. Moreover, the exception does not apply just to visual observation. It includes a police officer's sense of touch, Minnesota v. Dickerson, 508 U.S. 366 (1993), and (in some jurisdictions) the officer's sense of smell.
The police enjoy similarly broad latitude under the Exigency exception. Under this exception, if the police have an objectively reasonable basis for believing immediate action must be taken to avoid injury to people or evidence, officers can lawfully engage in warrantless conduct for the purpose of addressing the emergency. While the exception does require some sense of urgency, it does not require headlong breathless flight or a general “hue and cry” in the streets. Indeed, the Court long ago held that a suspect's simple decision to step back into her home upon seeing the police was sufficiently “exigent” to trigger application of the exception. Even police-manufactured exigencies (like banging loudly on the door of a home, causing the people inside to panic) can trigger the exception so long as the officers' exigency-creating conduct is lawful. Plain View and Exigency are not unique in their breadth. The other named exceptions offer the police similar freedom.
Moreover, in addition to the six named exceptions, the Court has created another vast carve-out to the warrant requirement. Specifically, in Terry v. Ohio, 392 U.S. 1 (1968), the Court found that police, without a warrant, can engage in a forced (albeit limited) warrantless seizure whenever they reasonably suspect the person they are stopping is involved in criminal activity. The police also, pursuant to Terry, may engage in a forced (albeit limited) warrantless search, whenever they reasonably believe the person they have stopped is armed and presently dangerous. Since its creation, the Terry doctrine has been expanded in ways that increase the categories of cases to which it applies and reduce the quality of evidence needed to trigger its application. Although the Court has never deviated in theory from its declaration that a police officer's “inarticulate hunches” will not suffice, the Court has been somewhat less demanding in practice. Indeed, the Court has described reasonable suspicion--the level of suspicion required for a Terry stop--as a “fluid concept.” The relatively indeterminate nature of the assessment has meant that even innocent behavior at times has been used to justify police engagement. In Illinois v. Wardlow, for example, the Court found that William Wardlow's decision to run after seeing the police satisfied the reasonable suspicion standard because Wardlow was in a “high crime” area
Likewise, the Court has expansive notions of what officers may do during Terry encounters. For example, under Terry's authority, officers may order any driver or passenger out of the car during a routine traffic stop, even in the absence of particular suspicion. Similarly, the Terry authority to frisk a person for weapons has been expanded to include the area immediately around the person stopped, including (for traffic stops) the interior of his or her car. As I (and others) have written elsewhere, this generous understanding of what Terry allows makes it the one case perhaps most responsible for the drastic (and dangerous) increase in warrantless police-citizen interactions.
Without question, the Court's above-described expansion of police power has met with some criticism. Writing in dissent to a case in the Terry line, the late Justice Marshall summed up his concerns as follows: “Today's decision invokes the specter of a society in which innocent citizens may be stopped, searched, and arrested at the whim of police officers who have only the slightest suspicion of improper conduct.” Voicing comparable discontent after the Court granted officers the automatic authority to order drivers out of their cars during routine traffic stops, Justice Stevens wrote, “[T]o eliminate any requirement that an officer be able to explain the reasons for his actions signals an abandonment of effective judicial supervision of this kind of seizure and leaves police discretion utterly without limits.” The Justice also cautioned that the newly sanctioned discretion might be exercised in discriminatory ways: “Some citizens will be subjected to this minor indignity while others--perhaps those with more expensive cars, or different bumper stickers, or different-colored skin--may escape it entirely.” ) Evidence of judicial concern also can be seen in the Court's 2009 and 2014 decisions limiting somewhat the authority granted under the “search incident” exception. However, in the main, the trend has been toward affording police officers more, not less, authority under the Fourth Amendment.
Moreover, this loosening of Fourth Amendment constraints has had undeniable racial impacts. Indeed, in a very real sense, the Court has erected an official wall of Fourth Amendment indifference to racialized policing. From Korematsu to Terry to Whren, the Court has consistently and repeatedly permitted a role for race in police decision making. As Devon Carbado has written, “there is a direct relationship between the scope of ordinary police authority, on the one hand, and African American vulnerability to extraordinary police violence, on the other.” The same can be said of prosecutorial authority over black lives: A direct line can be drawn between the above understanding of police authority under the Fourth Amendment and the expanded ability of the prosecutor to secure convictions that disparately impact black Americans. But, before turning to consider the power of the prosecutor, one final link in the Fourth Amendment chain needs to be explored--the (non)exclusion of unconstitutionally obtained evidence.
