Cross-Enforcement of the Fourth Amendment

By Kerr, Orin S. | Harvard Law Review, December 2018 | Go to article overview

Cross-Enforcement of the Fourth Amendment


Kerr, Orin S., Harvard Law Review


CONTENTS  INTRODUCTION I.   THE CURRENT LAW OF CROSS-ENFORCEMENT      A. Cross-Enforcement Up: State Enforcement of Federal Law         1. Cross-Enforcement Up Is Permitted If State Law Authorizes            It         2. Cross-Enforcement Up Is Permitted Even If State Law            Prohibits It         3. Cross-Enforcement Up Is Permitted If Either Federal or            State Law Permits It         4. Cross-Enforcement Up Is Permitted Unless Either Federal            or State Law Prohibits It         5. Cross-Enforcement Up Is Permitted Only If Authorized            by Federal Law      B. Cross-Enforcement Down: Federal Enforcement of State Law         1. Cross-Enforcement Down Requires Some Grant of Authority         2. Cross-Enforcement Down Requires Authorization from            State Law         3. Cross-Enforcement Down Requires No Authorization (The State            Search Warrant Cases)      C. Horizontal Cross-Enforcement: State Enforcement of Another         State's Law II.  RECOVERING THE LOST HISTORY OF FOURTH AMENDMENT      CROSS-ENFORCEMENT      A. The Early History of Fourth Amendment Cross-Enforcement      B. Cross-Enforcement Up in the Prohibition Era         1. Triggering the Fourth Amendment         2. Authorization to Search and Seize      C. A Leading Example of Cross-Enforcement Up During Prohibition:         Marsh v. united states      D. Cross-Enforcement Down in the Prohibition Era      E. The Search-Incident-to-Arrest Cases         1. The Important Case of United States v. Di Re         2. The Follow-Up Cases of Johnson, Miller, and Ker      F. Why Supreme Court History No Longer Provides Useful Guidance         on Cross-Enforcement III. A PROPOSAL FOR FOURTH AMENDMENT CROSS-ENFORCEMENT      A. The Interest Balancing of Fourth Amendment Reasonableness      B. When Should Officers Be Allowed to Invoke the Government         Interest of Another Government?      C. Authorization of the Enacting Jurisdiction as the Key         to Cross-Enforcement      D. Identifying Authorization and Assigning Authorization Defaults      E. The Role of an Officer's Home Jurisdiction's Law CONCLUSION 

INTRODUCTION

Imagine you are a state police officer in a state that has decriminalized marijuana possession. (1) You pull over a car for speeding, and you smell marijuana coming from inside the car. Marijuana possession is legal under state law but remains a federal offense. (2) Can you search the car for evidence of the federal crime even though you are a state officer? (3)

Next imagine you are a federal immigration agent driving on a state highway. (4) You spot a van that you have a hunch contains undocumented immigrants. You lack sufficient cause to stop the van to investigate an immigration offense, but you notice that the van is speeding in violation of state traffic law. Can you pull over the van for speeding even though you are a federal agent? (5)

These scenarios ask whether the Fourth Amendment permits what I call "cross-enforcement." Cross-enforcement asks whether an officer employed by one government can justify a search or seizure based on a violation of a different government's law. (6) The constitutionality of a search or seizure often depends on whether an officer has sufficient cause to believe a public law has been violated. (7) Evidence of the law violation justifies the search or seizure by rendering it constitutionally reasonable. In our federal system, that prompts an important question: What laws count? If an officer lacks reason to believe that his home jurisdiction's law has been violated, and a search would violate the Fourth Amendment based only on that law, can the officer invoke the broader laws of another jurisdiction to make the search constitutional?

The legality of cross-enforcement is a recurring question that often touches political flashpoints. The federal and state governments have different constitutional roles, and their values frequently diverge. …

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