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Title
Abstract
Introduction
Conclusion
References

Taking Warrants Seriously

Profile image of Oren Bar-gillOren Bar-gill

Abstract

Courts and commentators are increasingly concerned about police misconduct — searches and seizures that fail to comply with Fourth Amendment protections. Current doctrine attempts to deter such misconduct with the threat of excluding unlawfully seized evidence. The remedy of exclusion is weak, however, in large part because judges only see cases in which the defendant obviously is guilty. Despite years of proposals, the alternative of money damages is largely unavailable. The problem is exacerbated because Fourth Amendment law is notoriously uncertain. The combination of these three factors results in ineffective deterrence of Fourth Amendment violations. We propose to replace the failed deterrence model with a stringent ex ante warrant requirement. We make a novel case for warrants based on findings from the social sciences. The Court, rather than continuously weakening the warrant requirement, should reverse course and set warrants as the centerpiece of the Fourth Amendment.

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References (30)

  1. The literature on the use of technology to obtain warrants is blossoming. See, e.g., Donald L. Beci, Fidelity to the Warrant Clause: Using Magistrates, Incentives, and Telecommunications Technology to Reinvigorate Fourth Amendment Jurisprudence, 73 DENV. U. L. REV. 293, 296-99 (1996) (arguing that technology makes it easier to obtain warrants);
  2. David A. Sklansky, Quasi- Affirmative Rights in Constitutional Criminal Procedure, 88 VA. L. REV. 1229, 1246-50 (2002) (discussing benefits of telephonic warrants);
  3. Slobogin, supra note 9, at 32-33 (discussing increasing use of telephonic warrants).
  4. See FED. R. CRIM. P. 4(d) (amending Rule 4 to allow a magistrate to issue a warrant "based on information communicated by telephone or other reliable electronic means"). Other amendments to Rule 4.1 provide that a magistrate may file a duplicate copy received electronically as the original and for the transfer and modification of warrants via electronic communication. See FED. R. CRIM. P. 4.1(b); see also FED. R. CRIM. P. 4.1(b)(4) (providing that issuance of a warrant based on information received by "reliable electronic means" can serve as an original);
  5. FED. R. CRIM. P. 4.1(c) (providing that absent bad faith, evidence from such a warrant may not be challenged based on the manner of issuance). For a summary of changes to the rules, see Letter from Comm. on Rules of Practice & Procedure of the Judicial Conference of the U.S. to Chief Justice John G. Roberts (Dec. 16, 2010), available at http:// www.uscourts.gov/uscourts/RulesAndPolicies/rules/Supreme Court 2011/Summary_of_Amendments .pdf.
  6. See Sarah Lundy, Officers Connect to Judges with Skype, ORLANDO SENTINEL, Mar. 29, 2011, at B2; see also Stuntz, supra note 2, at 908 (proposing adoption of telephonic warrant procedures).
  7. & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 MICH.
  8. L. REV. 651, 659 (2002) (stating evidence that the Maryland road data was falsified by collecting officers).
  9. See 2 WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 3.2(e) (4th ed. 2004 & Supp. 2011-2012) (discussing the "fair probability" standard).
  10. See Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP.
  11. CT. REV. 153, 153-54 (describing consensual encounters, such as those that occur on Greyhound buses, as "an important law enforcement tool").
  12. See NYPD STOP & FRISK REPORT, supra note 103, at viii (covering a fifteen-month period in 1998 and 1999).
  13. CTR. FOR CONSTITUTIONAL RIGHTS, RACIAL DISPARITY IN NYPD STOPS-AND-FRISKS 5 (2009), available at http://ccrjustice.org/files/reports/Report_CCR_NYPD_Stop_and_Frisk.pdf. 184 Matthew Block, Ford Fessenden & Janet Roberts, Stop, Question and Frisk in New York Neighborhoods, N.Y. TIMES (July 11, 2010), http://www.nytimes.com/interactive/2010/07/11/nyregion/ 20100711-stop-and-frisk.html. 2002. 229 Extrapolating from the local traffic-stop data, fully recognizing the difficulties that such extrapolation might involve, we cautiously estimate that each year about three million searches take place in the United States during routine traffic stops. 230 229 Data on the number of searches conducted is taken from consent decree reports available at L.A.
  14. POLICE DEP'T, supra note 176; U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-00-41, RACIAL PROFILING: LIMITED DATA AVAILABLE ON MOTORIST STOPS 50 (2000), available at http://www.gao.gov/new.items/ gg00041.pdf (discussing the San Diego Police Department); INST. ON RACE & POVERTY, supra note 176, at 4 (discussing Minneapolis). Population figures, used in the per-capita searches calculations, are taken from the Census website. See generally State & County QuickFacts, U.S. CENSUS BUREAU, http:// quickfacts.census.gov/qfd/states/ (last visited May 21, 2012).
  15. The extrapolation technique used is the following: For each one of the three jurisdictions-LA,
  16. San Diego, and Minneapolis-we took the average number of searches when there were multiple years of data, divided this number by the population in the jurisdiction to obtain per-capita search rates, and then multiplied by the total U.S. population. A total U.S population figure of 309 million was taken from U.S. CENSUS BUREAU, supra note 229. An alternative extrapolation technique, based on the number of sworn police officers, rather than on population figures, yielded similar results. Data on the number of sworn officers in each of the three jurisdictions and aggregate U.S. figures was taken from the Uniform Crime Reports' Law Enforcement Personnel section. FED. BUREAU OF INVESTIGATION, Full-Time Law Enforcement Employees by State, 2009, CRIME IN THE UNITED STATES 2009 (Sept. 2010), http://
  17. fbi.gov/ucr/cius2009/data/table_77.html (last visited June 3, 2012). A third approach for obtaining total U.S. search figures is based on available estimates. Specifically, we found several estimates of the total number of traffic stops in the U.S., ranging from 43 million to 58 million. We also found several estimates of traffic-stop search rates from several jurisdictions ranging from 4.3% to
  18. 8%. Multiplying the total number of traffic stops in the U.S. (more precisely, the mid-point of the 43- million to 58-million range) by the search rate (more precisely, by the midpoint of the 4.3% to 6.8% range), yields an estimate of 2.55 million traffic stop related searches per year in the United States. For estimates of the total number of traffic stops in the U.S., see CORDNER ET AL., supra note 176, at 24 (suggesting 57 million stops annually between 2000-01); INST. ON RACE & POVERTY, supra note 176, at 11-12 (suggesting 46.5 million stops in 2002);
  19. L.A. POLICE DEP'T, supra note 176 (combined studies for three years suggesting 48 million stops annually between 2006 and 2008); MD. STATISTICAL ANALYSIS CTR., GOVERNOR'S OFFICE OF CRIME CONTROL & PREVENTION, EIGHTH REPORT TO THE STATE OF MARYLAND UNDER TR 25-113, at 8 (2010), available at http://www.goccp.maryland.gov/ msac/documents/TSDReport2010.pdf; MD. STATISTICAL ANALYSIS CTR., GOVERNOR'S OFFICE OF CRIME CONTROL & PREVENTION, SEVENTH REPORT TO THE STATE OF MARYLAND UNDER TR 25-113, at 4 (2009), available at http://www.goccp.maryland.gov/msac/documents/TSDReport2009.pdf (suggesting, with the 2010 Maryland report, supra, that there were 43 million stops annually between 2008 and 2009);
  20. WEISS & ROSENBAUM, supra note 176 (two studies suggesting 58.3 million stops annually between 2009 and 2010). But see DUROSE, SMITH & LANGAN, supra note 228, at 1 (suggesting there were 29.4 million stops in 2005);
  21. Illya D. Lichtenberg & Alisa Smith, How Dangerous Are Routine Police-Citizen Traffic Stops?, 29 J. CRIM. JUST. 419, 423 (2001) (providing an estimate of 60, 120, or 160 million traffic stops per year). For search-rate estimates, see CORDNER ET AL., supra note 176, at 16 (finding that an average of 6.75% of San Diego traffic stops resulted in a search between 2000 and 2001);
  22. DUROSE, SMITH & LANGAN, supra note 228, at 1 (finding that 5% of traffic stops nationwide resulted in a search in 2005);
  23. MD. STATISTICAL ANALYSIS CTR., supra, at 9 (finding that an average of 3% of Maryland traffic stops resulted in a search between 2008 and 2009) [Professors, Please clarify which Maryland Report you are citing-2010 or 2009?]. But see INST. ON RACE & POVERTY, supra note 176, at 10, 19, 22 (indicating that 9.33% of Minnesota traffic stops resulted in a search in 2002);
  24. L.A. POLICE DEP'T, supra note 176 (indicating that an average of 12.06% of Los Angeles traffic stops resulted in a search between 2006 and 2008).
  25. See, e.g., L.A. POLICE DEP'T, ARREST, DISCIPLINE, USE OF FORCE, FIELD DATA CAPTURE, AUDIT STATISTICS, AND NEW DIRECTIVES/POLICIES: COVERING PERIOD OF JULY 1, 2008-DECEMEBER 31, 2008, at 4, 6 (2009), available at http://www.lapdonline.org/assets/pdf/FinalConsentDecreeRptJuly December2008.pdf (showing that there were about 97,000 searches in a half-year period, 34,000 of which resulted from auto stops).
  26. VAN DUIZEND ET AL., supra note 122, at 17.
  27. Craig D. Uchida & Timothy S. Bynum, Search Warrants, Motions to Suppress and "Lost Cases:" The Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. CRIM. L. & CRIMINOLOGY 1034, 1051 (1991).
  28. Gould & Mastrofski, supra note 166, at 334.
  29. NEW YORK POLICE DEP'T, INTELLIGENCE DIV., SAFETNET MONTHLY TOTALS 2008 (2011) (on file with author).
  30. The extrapolation takes the figure of 5,000 warrants, divides it by the New York City population, and then multiplies by the total U.S. population.

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