40. See Olmstead, 277 U.S. at 466; Berger, 388 U.S. at 44.

  41. See Dripps, supra note 30 at 1091–92; William J. Stuntz, “The Pathological Politics of Criminal Law,” Mich. L. Rev. 100 (2001): 539.

  42. See, e.g., Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 453–54 (1990). For more on this point, see supra Chapter 3.

  43. The factual account is taken from the reported decisions in Utah v. Sims (Sims I), 808 P.2d 141 (Utah Ct. App. 1991), and Sims v. Collection Division of the Utah State Tax Commission (Sims II), 841 P.2d 6 (Utah 1992).

  44. Sims I, 808 P.2d at 142–46.

  45. Id. at 147–48 (“Sims argues that the lack of statutory authority renders suspicionless roadblocks improper under the Utah Constitution.”); Sims II, 841 P.2d at 9 (“Other states have inferred legislative authority to conduct roadblocks from such statutory grants of general police powers.”).

  46. Sims I, 808 P.2d at 147–49; see also Sims II, 841 P.2d at 7, 9n4.

  47. Sims II, 841 P.2d at 9; Sims I, 808 P.2d at 141, 142–43, 148, 149.

  48. R. v. Spencer, 2014 S.C.C. 43 ¶¶ 2, 68 (Can.).

  49. On these broad grants of authority, see supra Introduction, Chapter 2.

  50. Kent v. Dulles, 357 U.S. 116, 128–129 (1958).

  51. Spencer, 2014 S.C.C. at ¶¶ 36, 62, 71.

  52. U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”); Virginia v. Moore, 553 U.S. 167, 168 (2008).

  53. E.g., California v. Greenwood, 486 U.S. 35, 43–44 (1988) (“We reject … Greenwood’s … argument … that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law … We have never intimated … that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs.”); see also, e.g., Moore, 553 U.S. at 176 (2008) (“[W]hile States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.”); Katz v. United States, 389 U.S. 347, 360 (1967) (establishing the “reasonable expectation of privacy” standard); William Baude and James Y. Stern, “The Positive Law Model of the Fourth Amendment,” Harv. L. Rev. 129 (2016): 1823 (“Fourth Amendment protection should depend on … legislation … statutes, and other provisions of law generally applicable to private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly.”). The question of what constitutes a search is discussed further in Chapter 9.

  54. Berger, 388 U.S. at 58–62; United States v. United States Dist. Ct. (Keith), 407 U.S. 297, 322; see also Samuel J. Rascoff, “Domesticating Intelligence,” S. Cal. L. Rev. 83 (2010): 589–90 (“[I]n the Keith case, the Supreme Court expressed the view that the Fourth Amendment does apply in cases ‘deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government.’ But … the Court … express[ed] ‘no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.’ As a practical matter, Congress partially plugged this gap in 1978 when it passed [FISA].…” (quoting Keith, 407 U.S. at 308, 309 (1972)).

  55. See H.R. 4952—Electronic Communications Privacy Act of 1986, List of Sponsors, Congress.gov, www.congress.gov/bill/99th-congress/house-bill/4952/cosponsors (last visited Apr. 25, 2016) (showing a mix of Republican and Democratic cosponsors); To Pass H.R. 5037, After Substituting for Its Text the Language of S. 917 as Amended, GovTrack.us, www.govtrack.us/congress/votes/90-1968/s439 (showing a bipartisan 72–4 Senate vote to pass the Omnibus Crime Control and Safe Streets Act of 1968).

  56. On deference, see supra Introduction, Chapter 3.

  57. Ornelas v. United States, 517 U.S. 690, 699 (1996).

  58. United States. v. Perry, 449 F.2d 1026, 1037 (D.C. Cir. 1971), quoted in Gerald M. Caplan, “The Case for Rulemaking by Law Enforcement Agencies,” Law & Contemp. Probs. 36 (1971): 504.

  59. Gill Interview, supra note 13.

  60. Id.; see also, e.g., Sandra M. Stevenson, Antieau on Local Government Law, 2nd ed. (2015), § 1.01 (“The term ‘local government’ … refers to local entities that have been organized to exercise governing authority, delegated by the state through charter, state constitution or statute.”).

  5. SEARCHES WITHOUT WARRANT

    1. Frunz v. City of Tacoma, 468 F.3d 1141, 1142 (9th Cir. 2006).

    2. See Transcript of Trial at 20:24–21:2; 37:6–39:25, 40:16–17, 184:22–185:6, Frunz, 468 F.3d 1141 (No. 05-35302); Frunz, 468 F.3d at 1142.

    3. See Transcript of Trial at 19:14–17, 75:18–21, 76:13–15,76:18–77:12, 357:4–13, Frunz, 468 F.3d 1141 (No. 05-35302); Frunz, 468 F.3d at 1142–43.

    4. See Transcript of Trial at 185:9–11, 186:15–18, 187:2–12, 308:7–24, 338:10–15, 343:11–14, Frunz, 468 F.3d 1141 (No. 05-35302).

    5. Transcript of Trial at 190:22–191–25, 192:7–17, 193:10–194:2, Frunz, 468 F.3d 1141 (No. 05-35302).

    6. Transcript of Trial at 195:7–18, 197:18–25, Frunz, 468 F.3d 1141 (No. 05-35302).

    7. Frunz, 468 F.3d at 1146.

    8. Frunz, 468 F.3d at 1146.

    9. Frunz, 468 F.3d at 1144, 1147 (damages, “the citizens of Tacoma”); Transcript of Oral Argument at 11:09, Frunz, 468 F.3d 1141 (No. 05-35302) (“You had a jury and for me it sounded like the jury gave your clients a hug and kiss for what they did. Boy was this a parsimonious jury. You should have thanked them.”); Frunz v. City of Tacoma, 476 F.3d 661, 665 (9th Cir. 2007).

  10. Oren Bar-Gill and Barry Friedman, “Taking Warrants Seriously,” Nw. U. L. Rev. 106 (2012): 1664–66 (citing studies indicating police rarely obtain warrants in advance of searches); Richard Van Duizend et al., The Search Warrant Process: Preconceptions, Perceptions, Practices (1985), 17; Craig D. Uchida and Timothy S. Bynum, “Search Warrants, Motions to Suppress and ‘Lost Cases’: The Effects of the Exclusionary Rule in Seven Jurisdictions,” J. Crim. L. & Criminology 81 (1991): 1051; Jon B. Gould and Stephen D. Mastrofski, “Suspect Searches: Assessing Police Behavior Under the U.S. Constitution,” Criminology & Pub. Pol’y 3 (2004): 334 (“[I]t is notable that not a single search in the sample of 115 was conducted by warrant. Although search warrants are rare in other jurisdictions … the pattern in [the city being studied] appears to be exceptional.”). On warrantless entries of the home, see, for example, Mitchell v. City of Henderson, No. 13-01154, 2015 WL 427835, at *17 (D. Nev. Feb. 2, 2015) (denying defendants’ motion to dismiss plaintiffs’ § 1983 claims regarding police forcibly entering and searching their homes without a warrant where plaintiffs were home at the time of entry); Carlos Miller, “Watch New York Cops Force Way into Woman’s Home Without Warrant,” PINAC, Apr. 10, 2015, http://photographyisnotacrime.com/2015/04/watch-new-york-cops-force-way-into-womans-home-without-warrant/ (describing police officers forcing their way into a woman’s home in search of a felon who was not found; video footage was taken); “Video: Man Refuses to Let Cops Search House Without Warrant,” RT, Sept. 3, 2014, www.rt.com/usa/185084-homeowner-police-enter-warrant/.

  11. The Maltese Falcon (Warner Bros., 1941).

  12. Ex parte Jackson, 96 U.S. 727, 733 (1877).

  13. Johnson v. United States, 333 U.S. 10, 14 (1948).

  14. United States v. Lefkowitz, 285 U.S. 452, 465 (1932).

  15. See Bar-Gill and Friedman, “Taking Warrants Seriously,” supra note 10, at 1643 & 1643n136 (citing studies on accountability and belief perseverance); Linda Babcock et al., “Creating Convergence: Debiasing Biased Litigants,” Law & Soc. Inquiry 22 (1997): 918 (settlement). Similarly, deliberation, which requires individuals to convince each other, filters out bias, prejudice, and irrational motives. See Bar-Gill and Friedman, “Taking Warrants Seriously,” supra note 10, at 1643 & 1643 n137.

  16. Katz v. United States, 389 U.S. 347, 357 (1967).

  17. See Christopher Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” Ill. L. Rev. 1999: 375 (“[T]oday’s swiss cheese exclusionary rule is a mere shadow of what it could be.”).

  18. See, e.g., Frunz, 468 F.3d at 1145 (“In such exigent circumstances, the police are entitled to enter immediately, using all appropriate force.”).

  19. See Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Mich. L. Rev. 98 (1999): 628–34 (discussing three justifications for warrantless arrests at common law in 1791: when (1) the offense was committed/attempted in view of the officer; (2) the person arrested committed a felony; and (3) the officer had reasonable cause to believe arrested individual committed a known crime); People v. Chiagles, 237 N.Y. 193, 195 (1923) (Cardozo, J.) (“[T]here is one exception [to the Fourth Amendment] that has been established as firmly as the rule itself. The government may ‘search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.’” (quoting Weeks v. United States, 232 U.S. 383, 392 (1914))); id. at 196 (“The right goes back beyond doubt to the days of the hue and cry, when there was short shrift for the thief who was caught with the mainour, still in seisin of his crime.” (internal quotation marks omitted)).

  20. On quantifying the exceptions, see, for example, David C. Behar, “An Exception to an Exception: Officer Inadvertence as a Requirement to Plain View Seizures in the Computer Context,” U. Miami L. Rev. 66 (2012): 472 (“[T]he Court has also carved a vast number of exceptions to whether and when a warrant is required … [w]ith all these exceptions, one must wonder whether Fourth Amendment protections are a rule or an exception itself.”); Thomas Y. Davies, “The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment ‘Search and Seizure’ Doctrine,” J. Crim. L. & Criminology 100 (2010): 939 (“[Crime-control justices] have … expand[ed] law enforcement search powers by announcing a multitude of doctrinal limitations and exceptions that make the earlier protections largely meaningless in practice.”); California v. Acevedo, 500 U.S. 565, 582–83 (1991) (Scalia, J., concurring in judgment) (claiming twenty-two exceptions). On the exceptions themselves, see United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (approving an unwarranted search by Border Patrol at a checkpoint forty-three air miles from the nearest Mexican border); United States v. Biswell, 406 U.S. 311 (1972) (permitting a search of gun dealer’s locked storeroom as part of an authorized inspection did not require a warrant); Wyman v. James, 400 U.S. 309 (1971) (finding home visits prescribed by statute as condition for welfare assistance is not a search covered by the Fourth Amendment); New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (“[S]chool officials need not obtain a warrant before searching a student who is under their authority.”); United States v. Knights, 534 U.S. 112 (2001) (approving a warrantless search of probationer’s apartment); City of Ontario v. Quon, 560 U.S. 746 (2010) (permitting a warrantless search of a city employee’s city-issued cell phone); South Dakota v. Opperman, 428 U.S. 364 (1976) (finding an inventory search of defendant’s locked but impounded car reasonable for Fourth Amendment purposes); Carroll v. United States, 267 U.S. 312 (1925) (approving a warrantless search of a car); Acevedo, 500 U.S. 565 (holding police may conduct warrantless searches of containers in cars, where police have probable cause to search the car or container); Michigan v. Tyler, 436 U.S. 499 (1978) (permitting warrantless entry into a building to fight a fire and officers to remain in the building to investigate the fire).

  21. Cardwell v. Lewis, 417 U.S. 583, 587–88 (1974).

  22. See id.at 590 (explaining the automobile exception is due in part to the fact that (1) “[a car] travels through public thoroughfares where its occupants and contents are in plain view” and (2) “[a car’s] function is transportation and it seldom serves as one’s residence or the repository of personal effects”); United States v. Chadwick, 433 U.S. 1, 12–13 (1977) (arguing that reduced “automobile privacy” is due in part to the fact that “[a]ll states require vehicles to be registered and operators to be licensed”).

  23. U.S. Const. amend. IV.

  24. Joint Comm. on Continuing Legal Educ. of the Am. Law Inst. and the Am. Bar Ass’n, Trial Manual for the Defense of Criminal Cases (Preliminary Draft No. 1, Sept. 29, 1966), 28, quoted in Telford Taylor, Two Studies in Constitutional Interpretation (1969), 23 & 182n12.

  25. See Taylor, Two Studies in Constitutional Interpretation, supra note 24, at 21, 43; Akhil Reed Amar, “Fourth Amendment First Principles,” Harv. L. Rev. 107 (1994): 761.

  26. See Taylor, Two Studies in Constitutional Interpretation, supra note 24, at 41–43; Amar, “Fourth Amendment First Principles,” supra note 25, at 774, 778, 798.

  27. See William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009), 232–52 (discussing the use of search warrants in the colonies and noting their indiscriminate issuance); Leonard Levy, “Origins of the Fourth Amendment,” Pol. Sci. Q. 114 (1999): 92 (quoting “The Rights of the Colonies,” 1772, reprinted in The Bill of Rights: A Documentary History, ed. Bernard Schwartz (1971), 1:206) (Boston Town Meeting).

  28. Acevedo, 500 U.S. at 581 (Scalia, J., concurring in judgment).

  29. Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999) (citations omitted).

  30. United States v. Davis, 785 F. 3d 498, 516–17 (11th Cir. 2015) (cell site data searches); Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (post-arrest buccal swab); Reynolds v. City of Anchorage, 379 F. 3d 358, 367 (6th Cir. 2004) (search of juvenile in group home).

  31. See Amar, “Fourth Amendment First Principles,” supra note 25, at 772 & 772n54 (suppression of Wilkes and others); Levy, “Origins of the Fourth Amendment,” supra note 27, at 87 (“Wilkes and Liberty”); Akhil Reed Amar, “The Fourth Amendment, Boston, and the Writs of Assistance,” Suffolk U. L. Rev. 30 (1997): 65–66 (importance of the Wilkesite cases).

  32. George Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774 (1962), xiii, 17–19.

  33. Id. at 20–22 (describing The North Briton); George Nobbe, The North Briton: A Study in Political Propaganda (1939), 206 (“I cannot tell, but I am trying to know.”).

  34. Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774, supra note 32, at 22–23 (describing the response to issue Number 45); Nobbe, The North Briton: A Study in Political Propaganda, supra note 33, at 214 (quoting Lord Halifax).

  35. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 441–43 (describing the searches and seizures); Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774, supra note 32, at 24–26 (Tower of London and ascension to stardom).

  36. Levy, “Origins of the Fourth Amendment,” supra note 27, at 88. One estimate puts the number of suits and trials at more than forty-six. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 443.

  37. Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774, supra note 32, at 29 (internal quotation marks omitted) (“extraordinary”); Wilkes v. Wood, 98 Eng. Rep. 489, 498 (C.B. 1763) (totally subversive).

  38. They exercised particular care not because a general warrant was of significance—it wasn’t—but because Wilkes himself was a Member of Parliament and privileged as such. See Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774, supra note 32, at 24. Thus, the usual form of the warrant was altered to include “treasonable” activities to get around the parliamentary privilege. Nobbe, The North Briton: A Study in Political Propaganda, supra note 33, at 214.

  39. M. H. Smith, The Writs of Assistance Case (1978), 336 (discussing the use of general warrants for 150 years before the Wilkesite cases); Wood, 98 Eng. Rep. at 498 (noting lawyers’ reliance on precedents approving general warrants); Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774, supra note 32, at 29 (quoting letter from the Duke of Newcastle to Devonshire, May 2, 1763); Money v. Leach, 1 Black W. 555, 558 (1765); Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 449 (noting Pratt’s issuance of a general warrant).

  40. Leach, 1 Black W. at 562 (Mansfield); id. at 558 (Yates); Wood, 98 Eng. Rep. at 498 (Pratt).

  41. See Joseph Story, “Codification of the Common Law,” in Miscellaneous Writings of Joseph Story, ed. William Story (1852), 701–02 (recognizing that some common law rules “are of such high antiquity, that the time cannot be assigned, when they had not an existence and use” while others “have been developed with the gradual progress of society”). For a framing-era view, see Zachariah Swift, A System of the Laws of Connecticut (1795–1796), 1:41 (“Courts however are not absolutely bound by the authority of precedents. If a determination has been founded upon mistaken principles, or the rule adopted by it be inconvenient, or repugnant to the general tenor of the law, a subsequent court assumes the power to vary from or contradict it.”), quoted in Charles W. Wolfram, “The Constitutional History of the Seventh Amendment,” Minn. L. Rev. 57 (1973): 736n289. See also Morton J. Horwitz, The Transformation of American Law 1780–1860 (1977), 23 (“Theoretically courts make no law … but in point of fact they are legislators … How can [common law rules] be said to have existed from time immemorial, when there [sic] origin is notorious.” (quoting the 1813 instructions of Judges Trapping Reeve and James Gould at Litchfield Law School)). Such a view was understood as early as the seventeenth century by Matthew Hale, who recognized both the constancy and the mutability of the common law: “[T]hey are the same English Laws now, that they were six hundred years since, in the general. As the Argonauts Ship was the same when it returned home, as it was when it went out; though in that long voyage it had successive amendments, and scarce came back with any of its former materials.” Matthew Hale, The History of the Common Law of England, 6th ed. (1820), 84.