The Norm Is That:
Probable cause, confirmed by an oath or affirmation, must be established before a warrant can be issued for a search or seizure, which violates the rights of all persons to be free from unnecessary searches and seizures.
In the virtual world, we’re currently disputing the use of this as such Fourth Amendment provision. Scott Greenfield and Orin “Same As We Might well Everywhere Else” Kerr got into a scuffle and over comment section on Simple Justice.
Kerr: In my opinion, your decision is between your personal dream of what the Establishment Clause might be and a virtual representation of where the Fourth Amendment actually is. When the decision is (b) because you really do not like the 4th Amendment that we currently have, you complain.
Greenfield: If I want my own personal dream of the 4th Amendment, what is wrong with that?” The Fourth is in a terrible situation, with a general norm that is only lip serviced prefacing a million exclusions. It’s something I would like to see happen. My ideal world is one in which there are no more exceptions to the rule…
Although I concede to simplifying Kerr’s position, you may read the full paper in the law review for yourself if you’re interested. However, it sparked my thoughts on exceptions. There are only so many exceptions that a rule can stand before it becomes a non-rule. As an indication of the magnitude of the problem, only a few examples will be shown.
Police ought to have specific legally articulable facts and conclusions from those facts that cause them to conclude that “criminal conduct may be afoot” before they can use the Terry frisk (Terry v. Ohio). The adjective “unreasonable” is what’s causing all of the troubles. There is no such thing as an unreasonable request, so long as 5 outside from 9 people agree that it is not.
Since Terry was originally intended for pedestrians, we’ll extend it to include drivers who are pulled over for no apparent reason. Police should be entitled to inspect every vehicle in the event of an arrest since it is legal to arrest someone over a traffic infraction. (Atwater v. of Lago Vista) But hold on! In Gant v. Arizona, less than 1 percent of the time, they won’t be able to conduct a search as a result of an arrest. You know, you can’t fraudulently accuse them of removing your things if they have a valid reason to tow your car (an other 99.99 percent of the time).
How about a few checks while we’re driving? Everyone being pulled over by officers, even if there was no evidence of any wrongdoing? There’s an exception for bad guys (Michigan v Sitz), but because checking everyone entering the country is required, you might as well throw around an immigration roadblock exception away from town as well (Illinois v. Lidster).
Exigent circumstances, such as those in full view or on wide fields, are also permitted. Wait. That last one is too significant to be mentioned in passing. “Exigent circumstances” indicates that if the police suspect it’s an emergency, they may not have time to seek a warrant, and we’re not going to force them to do so.
In some cases, a search warrant is obtained and signed by a judge, but even in those cases where a mistake is made (as in U.S. v. Leon), the Supreme Court may construct a good faith exception, which might become the rule by which all others are judged.
What happens if evidence is gathered in an illegal manner? We don’t want to interfere with both the District Attorney’s ability to use it before the Grand Jury in this case (United States v. Calandra). The inevitable discovery concept will justify its admitting if they can establish they would (may) have received the evidence otherwise.
Enough. Even if I haven’t covered everything, I think you get the idea. On the Kerr/Greenfield gap, I’ve spoken before and won’t do it again. But, and this is a big but, may I ask…