Taking Warrants Seriously
Bar-Gill, Oren, Friedman, Barry, Northwestern University Law Review
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.
In theory and practice both, the two most contentious issues in search and seizure law today involve the questions of the proper remedy for Fourth Amendment violations and of whether police officials must obtain warrants before engaging in conduct covered by the Fourth Amendment.1 In recent years, the Supreme Court has handed down major decisions on each. The first issue reflects perennial dissatisfaction with the exclusionary rule, as well as stasis regarding any satisfactory alternative. As to the second, what was once a "warrant requirement" is now a rule so laden with exceptions that it best resembles a piece of Swiss cheese, a state of affairs increasingly accepted as the new normal. What seems to have occurred to almost no one is that the solution to the first problem is to shiftdirection entirely on the second.2
There is no gainsaying animosity toward the exclusionary rule. There have always been critics of the notion that simply because the police obtain information in violation of the Fourth Amendment, the proper remedy is to exclude that evidence from a criminal trial, sometimes with the effect of dismissing charges altogether.3 Even so, the degree of hostility in recent Supreme Court decisions toward this longstanding rule has been quite breathtaking. In the 2011 decision in Davis v. United States, a 6-3 majority used language strongly suggesting that exclusion will move from being the usual remedy in Fourth Amendment cases to one employed only as a "last resort" when the "deterrence benefits of suppression . . . outweigh its heavy costs."4 Yet what cannot be denied is that no alternative to exclusion has attracted sufficient support to see it implemented. Indeed, that very same Term, in Ashcroftv. al-Kidd, the Justices held 8-0 that the Attorney General had immunity from monetary damages for the pretextual detention of Abdullah al-Kidd under the material witness statute, one of many decisions immunizing officials for Fourth Amendment violations.5 There is a longstanding debate about whether money damages would be a better remedy than exclusion, given the latter's costs, but in truth, any remedy for Fourth Amendment violations seems to be slipping away.
On the issue of warrants, matters are only slightly more complicated. In Katz v. United States, the Supreme Court declared unequivocally what had long been understood: that searches without warrants were "per se unreasonable."6 Katz backed this up by invoking the specter of exclusion whenever a warrant was not obtained.7 Yet, as a matter of simple empirics, the vast majority of police actions covered by the Fourth Amendment occur without warrants. And doctrinally, this is somehow just fine. It often appears from reading the cases that each failure to obtain a warrant merely begets a new exception to the warrant requirement. In yet another 2011 decision, Kentucky v. King, only Justice Ginsburg dissented from the Court's decision that the exigency exception to the warrant requirement applies even if the police have created the exigency themselves by knocking and announcing their presence rather than simply obtaining a warrant when possible. …