The Supreme Court, Criminal Procedure and Judicial Integrity
Saltzburg, Stephen A., American Criminal Law Review
I. INTRODUCTION: FOUR TRENDS
We are fighting a war on terrorism, and as we do, the federal judiciary has been and will be called upon to address questions of how far the government may go in fighting the war before it intrudes upon constitutionally protected liberty and privacy. It is too early to know where the lines will be drawn and how many times the United States Supreme Court might decide that issues are sufficiently important that it will resolve them. But we might profit from looking at the last war that we declared and that we continue to fight: namely, the war on drugs. And we might also gain some insight from looking at the battle we have been fighting against illegal immigration, because immigration enforcement has taken on renewed importance since the tragic events of September 11, 2001. Many of the cases I will discuss have roots in decisions that go back in time. The continuing validity of these cases makes them relevant today.
Sixteen years ago, I made the point using the open fields doctrine as an example that the war on drugs was causing the Supreme Court to water down the protections of the Fourth Amendment. (1) The trend that I observed then has continued and is also apparent in decisions involving suspected illegal aliens.
What I shall address today is not whether the Supreme Court is too conservative or ought to be more liberal, whatever those terms mean. My analysis instead focuses on a combination of disturbing trends I see in the Court's Fourth Amendment decisions. Although one could identify more, there are four related trends which should give reasonable observers of our criminal justice system pause.
First, there is the tendency of the Supreme Court to pretend that the world we all know is not the world in which law enforcement operates. To be blunt, I contend that the Supreme Court has offered opinions that strain to describe human nature and typical behavior and rely upon beliefs and reactions of ordinary people to fit the world that law enforcement wishes the Court to believe is real. Whether the Court is out of touch with the world in which most people live or is blinking and winking to aid law enforcement probably does not matter. Decisions that do not correspond to the world in which most people live threaten to undermine the integrity of the judicial system.
Second, the Court has been too quick to adopt "bright line" rules in an effort, supposedly, to provide more guidance to law enforcement. There are two principal problems with these rules. One is that bright line rules that are divorced from the rationale for action never provide as good guidance as the rationale itself. The other problem is that the Fourth Amendment's place in the Bill of Rights strongly suggests that, if bright line rules are to be adopted, they should protect the constitutional rights of citizens rather than promote police efficiency. (2)
Third, there are recent signs that the Court is hinting to law enforcement that it can escape the Fourth Amendment's restrictions if it offers phony explanations for actions. In other words, if law enforcement is honest about its intentions, the Fourth Amendment may inhibit actions; but, if law enforcement is willing to offer a false defense of its actions, it may escape the limitations of the Fourth Amendment. These signs are troubling because the Court ought never to be encouraging governmental subterfuge.
Fourth, the Supreme Court's tolerance of pretext searches and seizures may well provide more deference to law enforcement than any civilized system should. The result may be to provide too much discretion to law enforcement and to intrude unnecessarily upon the privacy of less powerful members of society.
These four trends are related to one another. They suggest a judicial straining to aid law enforcement and an undervaluing of the Fourth Amendment protection of privacy and freedom from government intrusion. …