PART II

  Constitutional Policing

  The Constitution does not just demand popular engagement around policing. It also limits what government can do. The Fourth Amendment, the most pertinent part of the Constitution when it comes to policing, prohibits “unreasonable searches and seizures.” The Equal Protection Clause also plays a role: it provides a strong rule against discrimination.

  This part explains how the Constitution’s primary safeguards apply to policing. Chapter 5 talks about warrants: why they are necessary and how modern technology makes getting them in advance of police action much easier. Chapter 6 explains that much of what has gone wrong with policing—from stop-and-frisk to overly aggressive drug interdiction—has occurred because the courts were not taking the Constitution’s requirement of “probable cause” seriously. Chapter 7 turns to the new policing; it offers a clean and easily applied understanding of how the Constitution’s two-hundred-plus-year-old safeguards should govern modern tactics like drunk-driving roadblocks, administrative inspections of businesses, drug interdiction, and airport security. Finally, Chapter 8 tackles the pervasive problem of profiling—racial and otherwise.

  A not insubstantial part of what’s wrong with policing today results from a failure of courts to implement what the Constitution requires. In light of the last part’s critique of courts, one might reasonably wonder: Can we ever depend on courts to get this right? That’s a fair question, but there is a reason for hope.

  First, the courts may be more open to the argument here than it seems at first blush. Policing has changed in dramatic ways over the last decades. Though the courts have tried to keep up, they have not quite understood how the Constitution should apply to the new policing. On many occasions, judges have gotten things wrong not so much because of reluctance or recalcitrance as simple confusion. Often they are not far off, and with a few course corrections by the judiciary, the constitutional law of policing would look quite different.

  Second, the Constitution is not just for the courts, though we have fallen into the habit of thinking so. All government actors must adhere to the Constitution’s requirements, even if the judges are not doing their job. The points about the Constitution made in this part are as much for policing officials and legislatures as they are for the courts. Policing agencies and legislative bodies should stop assuming that if the courts say something is constitutional, it is fine to go ahead and do it. That is precisely what has led to the realization today that too much policing is “lawful but awful.” Policing officials in particular should ask themselves whether what they are about to do really is consistent with how they believe the Constitution should operate.

  Finally, every citizen ought to have an understanding of what the Constitution requires. There is plenty of evidence that not only government officials but courts as well fall into line with popular understandings about constitutional meaning. This means that the public should have a certain constitutional literacy regarding policing. Part II is about connecting the time-honored principles of the Constitution to the new order of policing.

  5

  SEARCHES WITHOUT WARRANT

  Just as the concept of democratic policing is meant to ensure that policing practices are consistent with the will of the people, warrants are a similar safeguard in individual police actions. Before the police burst into someone’s home, or seize them or their property, another branch of government—the judiciary—checks to make sure that the facts justify what is about to occur. Warrants are one way to keep mistakes from happening. That is why, as the Supreme Court has said for over one hundred years, the Fourth Amendment expresses a preference that before police act, they have a judicial warrant.

  In actual practice, though, the obligation to get a warrant is far more honored in the breach. Worse yet, of late, some Supreme Court justices have started to argue the Fourth Amendment doesn’t really require warrants anyway. Thus, ironically, at the very moment technology is making it easier for the police to get warrants, judges are tripping over themselves to excuse them.

  This is a mistake.

  A REMARKABLE, UNREMARKABLE CASE

  “The facts are remarkable.” So began the opinion of the federal appellate judges in the case of Frunz v. City of Tacoma. The case is indeed remarkable, but perhaps not for the reason the judges had in mind.1

  Susan Frunz and her husband, Ted Quandt, had divorced. Quandt had possession of the house and an order restraining Frunz from entering his residence. But when Quandt moved to California, in mid-November 2000, he gave the house back to Frunz, mailing the keys to her divorce lawyer, William Dippolito. After having the phone and power turned back on, Frunz moved in, and—shortly thereafter—had two guests over.2

  The police enter this story because of Frunz’s neighbor, Clinton Staples. On November 18, 2000, Staples called the police and told them that Quandt had asked him to watch the house, and that Quandt’s ex-wife (Frunz) had shown up with a companion. Officers responded, and knocked at Frunz’s door. When no one answered, they left. Four hours later, Staples called again, to report that someone had come to the door; he had seen Frunz answer it and let the person in. This time Staples told dispatch that there was a restraining order out on Frunz precluding her from entering the premises.3

  Six or seven officers returned, and observed people in the house. Covering the front door, they broke into the back one. Frunz heard the crash and went to investigate. She encountered an officer, who thrust a gun in her face, just inches from her head. Frunz and her guests were ordered to the floor—one was physically slammed there—and they were handcuffed. One guest was moved to the lawn and hog-tied, his feet secured as well.4

  Once the officers determined there were no warrants on the men they released them, but—inexplicably—kept Frunz handcuffed. They moved her to a chair, and began to interrogate her. They repeatedly demanded Frunz’s name, asked other questions. Every time she tried to explain, someone would say, “Shut up,” and insist, “You’re a burglar.” They threatened to jail her. Even when one officer found some paperwork in the house containing Frunz’s name, they refused to believe her. Cold and in tears, Frunz told them just to take her to jail, to end the nightmare.5

  Finally, Frunz persuaded the officers to call her divorce lawyer. Given that it was a Saturday, and that Dippolito himself was in Florida, it was sheer luck that Dippolito’s son answered and connected his father with the police. Eventually, Dippolito confirmed Frunz’s story, to the officers’ satisfaction. Whereupon they simply up and left. The required incident report was never even filed.6

  Faced with this set of facts, the judges played “you be the police officer.” How else might the officers have handled the situation? The lawyer arguing on behalf of the officers insisted they’d done the only thing possible; they were confronted with an emergency, and so they went in. The judges demurred; they were able to think of a host of other possibilities. For example, the police might have “questioned the neighbor as to his last contact with the husband, in which case they may have learned that the husband had moved out of the house and was living in another state.” They even could have knocked at the door, as they had done just an hour and a half earlier, and politely asked the occupants whether they were entitled to be there.7

  But the last thing the judges pointed to was (in their words) “most important”—the failure to get a warrant. “Reasonable officers,” the court said, would not have “[b]urst through the back door unannounced with guns drawn and handcuffing the occupants—the owner for a full hour.” They would “have tried to obtain a warrant … and monitored the house to see if anyone went in and out.” 8

  The jury awarded Frunz $27,000 in compensation, and another $111,000 in punitive damages. If anything, the judges thought, this was kind to the officers. “[T]he citizens of Tacoma,” they said, “would not want to be treated in their own homes the way the jury found officers … treated Frunz and her guests.” In addition to fining the defendants for filing a frivolous appeal, the judges ordered that the City Attorney inform the City Council what happened. The author of the court’s opinion was one of this country’s best-known judges, a conservative with a libertarian streak, Alex Kozinski.9

  While the court called the facts of Frunz’s case “remarkable,” police officers conduct searches and seizures without warrants frequently, despite having ample time to obtain them. In fact, these days police officers almost never get warrants before searching. As is true in so many other areas of policing, it is difficult to get hard data. But there is some clear evidence. One study from the 1980s concluded that “the overwhelming majority of criminal investigations are conducted without recourse to a search warrant” and that few law enforcement officers sought warrants. Another study from 1991, looking at seven jurisdictions with a combined population of almost four million, found that only 2,115 search warrants were issued in a six-month period. Two academics conducting fieldwork in 2004 in a mid-sized American city observed 115 searches; none were by warrant. Even warrantless entries of the home—what bothered the judges most in Frunz—are common, as but a few minutes on the Internet will reveal.10

  The reason police don’t bother to get warrants is because the Supreme Court has taken a cavalier, if not outright dismissive, attitude toward them. Given the justices’ willingness to approve what police do without a warrant, it can come as no surprise that police don’t bother to get them.

  What happened to Susan Frunz is all too common, and yet quite avoidable. The judges in Frunz’s case were right to be angry and to treat the case as remarkable. One wishes that sort of reaction to the failure of police to get a warrant were more typical, and that as a result more warrants were obtained—especially now that technology has made it much easier to do so.

  THE IMPORTANCE OF WARRANTS

  In the film classic The Maltese Falcon, police visit the home of the private detective Sam Spade—played by Humphrey Bogart—suspecting him of having shot his business partner. They ask what kind of gun he carries, and Spade replies, “None. I don’t like them much.” When pressed on whether he has one at the house, he denies it and urges the officers, “Look around.” Then he taunts them: “Turn the dump upside-down if you want. I won’t squawk—if you’ve got a search warrant.”11

  That was 1941, and at the time, Supreme Court precedent squarely supported Spade’s insistence on a warrant. Indeed, in 1877, in one of their first Fourth Amendment decisions ever, the justices wrote, “Whilst in the mail, [a person’s papers] can only be opened and examined under like warrant,… as is required when papers are subjected to search in one’s household.” The justices have said similar things time and again since—until very recently.12

  Why warrants? In common parlance, “unwarranted” means unjustified. So, too, when it comes to particular searches or seizures: warrants are a form of approval by a neutral third party—a magistrate or judge—acknowledging good reasons (“probable cause”) to allow police to invade someone’s life. Police—on a mission to get the bad guys—may act too hastily. They may, as in Susan Frunz’s case, be overly confident in their assessment of the necessity of searching a particular person or place. All this is both predictable and understandable. Thus the importance of warrants. Warrants simply ensure, as Justice Robert Jackson explained in 1948, that the ultimate decision to search is made “by a … magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”13

  Intuition and experience support the requirement to ask permission. How often have you had an idea, one you were persuaded was a really good one, only to have it collapse when you said it out loud to someone else? Even your best friend. Sometimes just the thought of telling someone else what we intend to do can cause us to cringe, to realize what seemed smart a moment ago is actually foolish. Police are no different; the simple fact of having to check in with a judge can cause cops to stop and think. To ask, “Do I have this right?” or “Is this really necessary?” That is exactly why, as the Supreme Court has said, the “informed and deliberate determinations of magistrates” are “to be preferred over the hurried action of officers.”14

  There’s lots of social science that supports the idea that asking to search will lead to better decisions. When people are forced to justify their decisions to a third party, research shows, those decisions tend to be more rational and less biased. For example, it turns out to be more likely that legal disputes will settle before trial if the parties are forced to consider the best arguments of their opponents; this allows people to see things in a more balanced light.15

  That’s what warrants are about. Giving reasons. And getting approval. From another person, one step removed from the chase. Because, as what happened to Susan Frunz demonstrates all too vividly, mistakes by the police can be traumatic to the innocent people who suffer them.

  WATERING DOWN THE WARRANT REQUIREMENT

  In 1967, in a case called Katz v. United States, the Supreme Court restated the requirement that officers get warrants before searching, in the firmest of terms. Searches without warrants, the justices declared, are “per se unreasonable.” That’s strong stuff in the law; it means that unless the police get a warrant first, a court simply will presume that what they did was unlawful. Unconstitutional. Katz has been cited time and again for the proposition that warrants are required.16

  Since then, though, the justices have riddled the seemingly strong rule with exception after exception, to the point that the warrant “requirement” now looks like a piece of “Swiss cheese.”17

  To be clear, there have always been exceptions to the warrant requirement, but they were rooted squarely in necessity. The most important exception—the one the police relied on (wrongly) to defend their actions in Frunz’s case—is “exigent circumstances.” This exception states the obvious: the police need not get a warrant if there is no time to do so. No court has ever demanded a warrant in an emergency.18

  Two of history’s longest-standing exceptions to getting warrants were built squarely on this idea of exigency. It has been the rule for centuries that people can be arrested without a warrant. But that’s obviously because people did not tend to stay put while a warrant was procured to take them into custody. Similarly, a search of the person and nearby property was allowed “incident to a lawful arrest,” so that police could locate evidence (which otherwise could be quickly destroyed) or weapons (which could be used to injure the police or others).19

  Of late, though, the Supreme Court has created so many new exceptions to the warrant “requirement” that legal scholars cannot even agree how many: they simply call the number “vast” or a “multitude.” Justice Scalia himself claimed there were twenty-two. The exceptions now include immigration checkpoints, administrative searches of regulated businesses, “consent” searches, searches of welfare recipients, students, parolees, and government employees, inventory searches, searches of moveable containers, automobile searches, boat searches, fire investigation searches—the list goes on.20

  Nothing captures the Supreme Court’s current disregard for warrants so much as the so-called automobile exception. Basically the justices have eliminated the need for a warrant whenever a car is searched. Now, cars obviously are mobile: in many circumstances exigency itself may justify a warrantless automobile search. But the Supreme Court has announced a blanket exception for cars—even immobile cars, like one case in which the owner was in custody and the police had the keys.21

  Although the automobile exception is now firmly ensconced in law, the justices cannot offer a coherent explanation for it, try though they might. They have said that police don’t need warrants to search cars, because people are visible in them. But houses have windows too; that doesn’t mean the police can simply walk in and search through our stuff. They have made the point that cars are used for transportation, not storage; that hardly covers the trunk of the car, and besides people need personal security when they are traveling just as much as when they are at home. The justices have even suggested that warrants are not necessary because state law requires registering cars—which seems to have nothing to do with anything at all.22

  In the roughly fifty years from its declaration in Katz that warrantless searches are “per se unreasonable” the Court effectively has reversed direction—in large part under pressure from the war on drugs—dismantling the warrant “requirement.” Here’s the critical thing, though: None of the cases explains why warrants are undesirable or unnecessary. There’s not a bad word about warrants to be found. It is just that same phenomenon we saw in Chapter 3, of courts bowing after the fact to what the police have already done, and in the process creating exception after exception until the rule itself is practically obliterated.

  CALLING THE WARRANT REQUIREMENT INTO QUESTION

  But things are worse than that. There is nowadays an indication the justices—certainly some of them—are ready to say the Constitution doesn’t really call for warrants. Again, none of them has even tried to offer any policy reason against warrants. Rather, today’s effort by some justices to undermine the use of warrants is based solely on the Fourth Amendment’s somewhat oddly written text, and an idiosyncratic interpretation of its history. They are wrong in this, and it is important to see why because the argument reverberates well beyond warrants, to the Fourth Amendment’s probable cause requirement, and to the question of how we are to regulate most aspects of the new policing.

  Begin with the text of the Fourth Amendment (with a couple of numbers inserted)—and note how it does indeed seem to leave something unsaid:

  (1) The right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures, shall not be violated, (2) and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.23