Judiciary

Fourth Amendment: Supremes Get One Right ... Or Do They?

What exactly is admissible criminal evidence and when is a warrant needed?

John J. Bastiat · May 31, 2018

Why does following the Constitution matter? The answer to this question has many moving parts but ultimately boils down to the choice of living in a society where the rules apply evenhandedly to all (Rule of Law) or one where the rules are either nonexistent or else a moving target, depending on who has the power at any given moment (rule of men). Supposedly, here in the U.S. we live in the former society; the people of Russia, in the latter.

The presumed arbiter of the final say in this Rule of Law construct for America is the Supreme Court of the United States (SCOTUS). But what happens when the law is gerrymandered over time from its constitutional moorings into something wholly different? That’s the question Justice Clarence Thomas implicitly asks in his concurring opinion in Collins v. Virginia, a Fourth Amendment case appealed from Virginia’s highest court, on grounds that at first blush appear to be a slam-dunk.

The facts of the case are fairly straightforward. A police officer investigating two traffic incidents involving “an orange and black motorcycle with an extended frame” learned the motorcycle was likely stolen. The officer then discovered photographs on the suspect’s Facebook page of the motorcycle parked in the driveway of a house. The officer went to the house and observed what appeared to be the motorcycle under a white tarp, parked in the driveway. Without a search warrant, the officer walked to the top of the driveway, removed the tarp, and confirmed the motorcycle was stolen by referencing license plate and vehicle identification number information. He then photographed the uncovered motorcycle, replaced the tarp, and returned to his car to wait for the suspect. When the suspect arrived, the officer arrested him.

The trial court denied the defendant’s motion to suppress the evidence on the basis the officer violated the Fourth Amendment when he trespassed on the property to conduct a search, and the defendant was convicted of receiving stolen property. The judgment was affirmed on appeal all the way up through the Virginia State Supreme Court, under the Fourth Amendment’s so-called “automobile exception” — more on that in a moment.

However, as Justice Sonia Sotomayor noted in her delivery of the opinion of the Court, the automobile exception is not without limits, especially when it comes to a search of someone’s home. Quoting from cases spanning from 1961 to 2013, Justice Sotomayor stated, “When it comes to the Fourth Amendment, the home is first among equals. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. To give full practical effect to that right, the Court considers ‘curtilage’ — the area immediately surrounding and associated with the home — to be a part of the home itself for Fourth Amendment purposes.” (internal quotes and citations omitted).

Requirements for a search of a house are different from those for an automobile, because a “vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought” (quoted from a 1925 decision) and because “automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order” (from a 1976 decision).

Accordingly, over the years the Court adopted what is today known as the automobile exception, which permits the warrantless search of an automobile provided probable cause for the search exists. The Court ruled that since the motorcycle was within the “curtilage” of the house and the search of a house requires a warrant, “the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.” In other words, the automobile exception doesn’t override the Fourth Amendment’s basic warrant requirement for the search of a house or its curtilage. Thus, under the “exclusionary rule,” the incriminating evidence produced by the officer through his search in violation of the Fourth Amendment’s warrant requirement must be “suppressed”: It is simply inadmissible against the defendant. Whether one agrees with the automobile exception or its limits under this case, at least the decision is understandable — so far, so good.

Now comes the wrench in the gears.

Not content with further propagation of a doctrine he considers constitutionally flawed, Justice Clarence Thomas launched a full frontal assault on the exclusionary rule itself. He noted that since the founding of the nation and long before, and through a long line of cases up until the landmark 1961 case Mapp v. Ohio, “historically, the only remedies for unconstitutional searches and seizures were tort suits and self-help.” The rationale behind this statement is that government officials who violated the Fourth Amendment were traditionally considered trespassers, thus permitting enforcement of the rights of the aggrieved through such remedies. That is, the “exclusionary rule” did not exist until relatively recently. Thomas noted, “As late as 1949, nearly two-thirds of the States did not have an exclusionary rule. Those States, as then-Judge Cardozo famously explained, did not understand the logic of a rule that allowed ‘[t]he criminal … to go free because the constable has blundered.’”

The exclusionary rule is most often the detested, nameless “technicality” in TV crime dramas employing the oft-repeated line, “He got off on a technicality, but he should be behind bars!” Thomas notes that before Mapp, there was no such “technicality.” And there ought not be now, he says: “The Founders would not have understood the logic of the exclusionary rule either. Historically, if evidence was relevant and reliable, its admissibility did not ‘depend upon the lawfulness or unlawfulness of the mode, by which it [was] obtained.’” (quoting an 1822 case).

Justice Thomas went on: “Despite this history, the Court concluded in Mapp v. Ohio that the States must apply the federal exclusionary rule in their own courts. … But that suggestion could not withstand even the slightest scrutiny. The exclusionary rule appears nowhere in the Constitution, postdates the founding by more than a century, and contradicts several longstanding principles of the common law.” He added that the exclusionary rule is a “judicially created” doctrine, not one mandated by the Constitution, yet the Court continues to describe it as “federal law” that also must apply to the States. “Yet the Court has never attempted to justify this assumption. If the exclusionary rule is federal law, but is not grounded in the Constitution or a federal statute, then it … cannot bind the States.”

Concluding, Justice Thomas states, “These precedents do not support requiring the States to apply the exclusionary rule. As explained, the exclusionary rule is not rooted in the Constitution or a federal statute. This Court has repeatedly rejected the idea that the rule is in the Fourth and Fourteenth Amendments, expressly or implicitly. … Instead, the rule governs the methods that state police officers use to solve crime and the procedures that state courts use at criminal trials — subjects that the Federal Government generally has no power to regulate. … In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States. We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution. We should do so.”

Most of us have understood the basic idea of the exclusionary rule from what we’ve seen on major-network police shows. The idea has become a basic tenet of our criminal justice system: Evidence obtained from an illegal search or seizure is inadmissible. Justice Thomas isn’t saying the doctrine itself should be cast aside: He’s saying we should follow the law. If Congress wants to memorialize the constitutionally baseless decision in Mapp in an actual statute that the federal government would then legitimately be able to mandate to the states, that would be fine. But creating and propagating a new “law” from the bench is constitutionally impermissible. Kudos to Justice Thomas for being true to the Constitution, and for sticking to principles even when doing so is unpopular.

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