Attorney Dan Krisch ()
I am fearful for the Fourth Amendment. Last month in Navarette v. California, the U.S. Supreme Court upheld a traffic stop based solely on an anonymous tip that an identical-looking truck had run the tipster’s car off the road. Six days later, the court heard argument in Riley v. California and United States v. Wurie, which raise the frightening prospect of warrantless searches of arrestees’ cell phones. Sadly, a majority of the court seems willing to drain the vitality from our right to be “secure . . . against unreasonable searches and seizures” in the name of effective law enforcement.
To return to a favorite theme: The purpose of the Bill of Rights is to make the government’s job harder, not easier. The warrant requirement is a prime example of that indispensable, but oft-forgotten, tenet of American democracy. Our Founding Fathers knew that the Fourth Amendment would make it more difficult for the authorities to catch criminals and to prosecute crime. They accepted that cost as one well-paid to ensure a sturdy bulwark against government intrusion and tyranny.
Nowadays, alas, the warrant requirement is more Swiss cheese than brick wall. Exceptions abound, like so many mouse-holes: the good faith exception; the emergency exception; Terry stops; investigative stops; plain view. And because these exceptions are judge-made, only judges – ultimately, the Nine Wise Souls in our capitol – can limit their scope.
Expansion, not limitation, is in vogue in Washington at the present, however, which is how we encounter the Navarette brothers: Two California patrol officers stopped their truck on Highway 1 and found 30 pounds of marijuana hidden in the truck bed. The patrolmen, who had followed the truck for five minutes, did not see it speeding, driving erratically, or violating any other traffic laws. The sole basis for the stop was to investigate an anonymous 911 call 20 minutes earlier, in which the caller said that the Navarettes’ truck had run her car off the road.
The law permits “brief” investigative stops without a warrant only if the police have a “particularized, reasonable suspicion” of ongoing criminal activity. In the Navarettes’ case, the patrolmen did not observe anything to give them such a suspicion; the Navarettes drove in the scrupulously lawful fashion that one might expect of two people with 30 pounds of weed in their truck. Having seen no evidence of an ongoing crime, the police claimed instead that the earlier 911 call created a “particularized, reasonable suspicion” of drunk driving, even though the patrol officers had witnessed nothing to corroborate that suspicion.
The Supreme Court, which ought to recognize shameless bootstrapping a bit better, held that the 911 call alone justified the stop. The 5-4 decision included an odd game of musical votes: Justice Stephen Breyer sided with the conservative majority, while Justice Antonin Scalia penned a typically acidic dissent, joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, which accused the majority of sanctioning “the loss of our freedom to come and go as we please without police interference.”
Scalia’s dissent focuses mainly on the trees: (1) the patrolmen had seen no evidence that the Navarettes were driving drunk; (2) the 911 call did not mention drunk driving; (3) the call was anonymous and so, unverifiable (and the caller not subject to later cross-examination); and (4) there were many, equally plausible reasons why the earlier accident may have happened, e.g., merely reckless, as opposed to drunk, driving, which is not ongoing criminal activity. Those four facts, in Scalia’s view, belied California’s claim of a “particularized, reasonable suspicion” for stopping the Navarettes’ truck.
It is the forest, however, that frightens more. As Scalia points out, beneath the majority’s stated rationale lurks its likely motivation – easing the Fourth Amendment’s burden on law enforcement. Mind you, this is not a wholly ignoble motive; society benefits in many ways if it is easier for the police to detect crime. It is simply that ease and the Bill of Rights make bad bedfellows.
Finding a proper balance between freedom and security was center stage again during the Riley and Wurie arguments, which concerned the scope of the search incident to arrest exception. The law permits such searches for safety reasons and because probable cause to arrest presupposes probable cause for a search of the arrestee – but what about the information in an arrestee’s cell phone?
In an iPhone world, a cell phone is a portal into nearly every aspect of its owner’s life and thus is a gold mine for the police. Indeed, in Riley and Wurie, searches of the defendants’ phones uncovered evidence that the police ordinarily would have needed a warrant to discover. While many of the justices seemed troubled by this development, I fear that at least five will remember how to forget the simple truth that policing is always easier in a police state.
Dan Krisch is a partner at Halloran & Sage in Hartford, where his practice focuses on appellate law and civil litgation. His email address firstname.lastname@example.org, and you can learn more about him at www.halloran-sage.com.