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«PUBLIC INTEREST(S) AND FOURTH AMENDMENT ENFORCEMENT Alexander A. Reinert* Fourth Amendment events generate substantial controversy among the public ...»

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Alexander A. Reinert*

Fourth Amendment events generate substantial controversy

among the public and in the legal community. Yet there is orthodoxy

to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered with references to the “costs” to society of enforcing the Fourth Amendment in favor of individual claimants.

Taking the “public interest” seriously in this framework predictably favors government intrusions.

This Article challenges this dichotomous approach to Fourth Amendment interpretation by identifying a new dimension of the public’s interest: important collective values that are in harmony, rather than in tension, with individual liberties. The multidimensional approach advanced here recognizes that there are many kinds of public interests, some of which are advanced and some of which are impeded by Fourth Amendment intrusions. Drawing on First Amendment and Due Process Clause jurisprudence, empirical data, and historical materials, this Article uses as examples two categories of collective interests—participatory pluralism and efficient and accurate administration of the criminal justice system—that are implicated by Fourth Amendment questions but are ignored by the Supreme Court’s current jurisprudence. If the Court is to take the public’s interest seriously, it needs a Fourth Amendment jurisprudence that takes into account these interests, among others, and acknowledges the reality that the “public interest” is multifaceted.

* Assistant Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. Email: areinert@yu.edu. I owe thanks to Richard Bierschbach, Erica Hashimoto, Max Minzner, Kevin Stack, and the Cardozo School of Law Junior Faculty Forum, among others, for helpful comments and feedback on earlier versions of this paper. All errors of commission and omission remain my own.


–  –  –


I.  The Transition to Unidirectional Public Interests in Fourth Amendment Analysis

A.  Putting Context-Based Reasonableness at the Heart of the Fourth Amendment

B.  Evolution of the Public and Private Interests at Stake in Fourth Amendment Balancing

II.  A Contrast in the Court’s Imagination of Collective Values........1475  A.  Exploring the Ramifications of Randomization

B.  Randomized Permitting for Public Gatherings

C.  Randomized Determination of Public Benefits Appeals......1479  D.  Randomized Searches and Seizures

III.  Articulating the Collective Values Vindicated by the Fourth Amendment

A.  Participatory Pluralism: The Deliberative Value of the Fourth Amendment

B.  Criminal Justice: The Fourth Amendment and the Collective Value of Efficiency and Accuracy

C.  Applying the New Model to Fourth Amendment Disputes

1.  Revisiting Terry and the Abandonment of the Probable Cause Standard

2.  Revisiting the Abandonment of the Warrant Requirement

3.  DNA Databanks and Other Anticipatory Searches.....1500  D.  The Singularity of the Fourth Amendment’s Exclusionary Rule



The Fourth Amendment prohibits unreasonable searches and seizures.1 Fourth Amendment events often captivate the public, as attested

1. The full text of the Amendment reads:

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.

U.S. CONST. amend. IV.



to by the high-speed car chase at issue in Scott v. Harris,2 the student strip search challenged in Safford Unified School District No. 1 v. Redding,3 and the 2009 arrest by a Cambridge, Massachusetts, police officer of Henry Louis Gates, Jr., a prominent professor at Harvard University.4 The attention garnered by each of these acute conflicts between the State5 and individuals is just one indication of the amendment’s importance in framing the constitutional order.6 While these Fourth Amendment events generate strong feelings on all sides, they also are interpreted through a particular legal orthodoxy that this Article will explore and critique: the view that there is inexorable conflict between the private interests (privacy, autonomy, and the like) that are invaded by Fourth Amendment intrusions and the public interests (usually safety, security, and prosecution of criminals) that are advanced by such intrusions.7

2. 550 U.S. 372 (2007). Video of the incident that formed the basis of the lawsuit in Harris has been posted on multiple Web sites, including the Supreme Court’s Web site and YouTube (in at least three versions). Supreme Court of the United States, Audio/Video Resources, Scott v. Harris-Video, http://www.supremecourt.gov/media/media.aspx (last visited May 27, 2010); YouTube, Police Chase— Scott v. Harris, http://www.youtube.com/watch?v=DBY2y2YsmN0 (last visited May 27, 2010); YouTube, Scott v. Harris (Car 1), http://www.youtube.com/watch?v=auw_VAczrTw (last visited May 27, 2010); YouTube, Scott v. Harris (Car 2), http://www.youtube.com/watch?v=cmx8gzx1N1k& (last visited May 27, 2010).

3. 129 S. Ct. 2633, 2641–42 (2009).

4. Gates’s arrest was national news even before President Barack Obama entered the fray. See Abby Goodnough, Harvard Professor Jailed; Officer Is Accused of Bias, N.Y. TIMES, July 21, 2009, at A13. The President’s comments regarding the arrest only heightened interest in the encounter. See Peter Baker & Helene Cooper, President Tries to Defuse Debate over Gates Arrest: Regretful Obama Eases Criticism of the Police, N.Y. TIMES, July 25, 2009, at A1; Helene Cooper, Obama Criticizes Arrest of a Harvard Professor, N.Y. TIMES, July 23, 2009, at A20.

5. In this Article, I use “state” and “government” interchangeably, as a generic reference to any governmental unit that has the capacity to engage in Fourth Amendment significant conduct, i.e., searches or seizures.

6. One could surely argue that other provisions of the Constitution—say the Equal Protection or Due Process Clauses of the Fourteenth Amendment—are equally prominent in the regulation of citizen-state relations; but for sheer scale, it is hard to overlook the Fourth Amendment. Looking solely at contact with a police officer, in 2005 about 19% of U.S. residents age sixteen or older reported a face-to-face contact with police, usually because of a traffic stop. MATTHEW R. DUROSE ET AL., BUREAU OF JUSTICE STATISTICS, CONTACTS BETWEEN POLICE AND THE PUBLIC, 2005, at 1 (2007). In New York City alone, more than half a million individuals were stopped and questioned in 2006 by police, and about 40% of these individuals were frisked. See N.Y. CITY POLICE DEP’T, NEW YORK POLICE DEPARTMENT (NYPD) STOP, QUESTION, AND FRISK DATABASE, 2006, http://dx.doi.org/10.3886/ICPSR21660 [hereinafter NYPD DATABASE] (view “FRISKED” variable).

Over 98% of such intrusions revealed no contraband. Id. (view “CONTRABN” variable). The numbers from 2006 reflect a trend of increasing intrusive police contact on the streets of New York. See Al Baker, Police Data Shows Increase in Street Stops: Disputing Complaints of Aggressive Tactics, N.Y.

TIMES, May 6, 2008, at B1 (reporting that police stops have steadily increased from 97,296 in 2002 and were on pace to top 600,000 in 2008). By contrast, the number of public assistance recipients in New York City—whose access to benefits would be mediated by the Due Process Clause, in part—has steadily declined from a high of 1.1 million in 1995 to 400,000 in 2006. OFFICE OF PROGRAM REPORTING,


ASSISTANCE RECIPIENTS IN NYC 1955–2006, http://www.nyc.gov/html/hra/downloads/pdf/HRA_ NYC_PA_1955-2006.pdf.

7. The coverage of the Gates arrest provides one window into the rhetoric behind the orthodoxy, with articles reflecting the clash between Officer Crowley’s stated interest in his and the public’s REINERT.DOCX (DO NOT DELETE) 8/27/2010 3:26 PM


Thus, although Fourth Amendment jurisprudence has undergone substantial change from the beginning of the twentieth century until the present8 and every Term of the Supreme Court presents the Court with additional opportunities to further transform the meaning of the amendment,9 in each resolution of these Fourth Amendment cases the Court’s analysis of the salient issues has been limited by a significant imaginative failure. Simply put, the Court views (and has viewed for the past several decades) Fourth Amendment disputes as a tension-filled clash between public interests, such as law enforcement, and individual interests, such as privacy and autonomy. These public and private interests are predictable and always at odds with each other.10 Striking down a particular Fourth Amendment intrusion in this context is always viewed as imposing a social cost because the only relevant public interests are those that are in tension with vindicating individual liberties.11 The Court does not have space in its analysis for public interests—what I call collective values—that are tied to individual interests in privacy and safety and Gates’s surprise and irritation at being questioned regarding his presence in his home. See Abby Goodnough, Sergeant Who Arrested Professor Defends Actions, N.Y. TIMES, July 24, 2009, at A3; Don Van Natta, Jr. & Abby Goodnough, After Call to Police, 2 Cambridge Worlds Collide in an Unlikely Meeting, N.Y. TIMES, July 27, 2009, at A13; Michael Wilson & Solomon Moore, As Officers Face Heated Words, Their Tactics Vary, N.Y. TIMES, July 25, 2009, at A1. I examine, in greater detail below, the limited legal thinking that is at the heart of the orthodoxy. See infra notes 37–76 and accompanying text.

8. The tension in the Supreme Court’s Fourth Amendment analysis that has received the most attention is its attempt to resolve the Warrant Clause (which requires that judicial warrants be particular as to their scope and supported by probable cause) with the Reasonableness Clause (which “secure[s]... against unreasonable searches and seizures”). U.S. CONST. amend. IV. Judges and scholars have openly clashed about whether the two requirements set out in the amendment should be read conjunctively or disjunctively; that is, whether an intrusion can be reasonable if it is not supported by probable cause and a specific warrant. See, e.g., Florida v. White, 526 U.S. 559, 568–69 & n.2 (1999) (Stevens, J., dissenting) (collecting cases in which clauses were treated conjunctively); Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 762–63 (1994); Erik G. Luna, Sovereignty and Suspicion, 48 DUKE L.J. 787, 791–93 & nn.6–18 (1999) (discussing the “conjunctive” and “disjunctive” interpretations among scholars and judges); see also Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 393–94 (1974); Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEM. L. REV.

483, 627 (1995); David A. Harris, Particularized Suspicion, Categorical Judgments: Supreme Court Rhetoric Versus Lower Court Reality Under Terry v. Ohio, 72 ST. JOHN’S L. REV. 975, 996–99 (1998);

Nadine Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. REV. 1173, 1175–76 (1988); Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 MINN. L. REV. 383, 384–85 (1988); Silas J. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 AM. CRIM. L. REV. 119, 130 (1989).

9. Last Term, several cases implicated Fourth Amendment principles. See Safford v. Redding, 129 S. Ct. 2633 (2009) (permissibility of strip search of public school student); Arizona v. Gant, 129 S.

Ct. 1710 (2009) (scope of the search incident to arrest exception to the warrant and probable cause requirements); Pearson v. Callahan, 129 S. Ct. 808 (2009) (qualified immunity and “consent-onceremoved” theory); Arizona v. Johnson, 129 S. Ct. 781 (2009) (iteration of the “stop and frisk” rule of Terry v. Ohio, 392 U.S. 1 (1968)); Herring v. United States, 129 S. Ct. 695 (2009) (application of exclusionary rule when an arrest is made based on an officer’s good faith reliance on false information).

10. See infra notes 44–64, 69–71, 97–107, and accompanying text.

11. See, e.g., Herring, 129 S. Ct. at 700–01 (describing “cost” of exclusionary rule—namely “letting guilty and possibly dangerous defendants go free”).



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