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Expectations of privacy

If there's a warrant for your arrest, does that mean if the cops pull you over for no reason, the stop and subsequent seach will be good, even if the cops aren't aware of the warrant until after the stop? For seventeen years, that was the law in Dayton and its environs; the 2nd District held in 1994 that someone with an outstanding arrest warrant had no reasonable expectation of not being arrested on it, and therefore had no standing to contest the illegality of the stop. The 2nd changed its mind last year in State v. Gardner and that's what everybody's going to get together to talk about before the Supreme Court next week. It may seem like an easy case to resolve, but it involves, in Scalian terms, the core values of the 4th Amendment: privacy and protection against government abuse. It will be interesting to see how the court works its way through that. Or if it does. 

At first blush, the state's argument appears to be a hard sell: although the 10th District recently bought into it, based on the 2nd District's line of cases, it's been rejected by three of the four Federal circuits which have considered it (including the 6th), as well as by the Federal court for the Southern District of Ohio. But it's not completely off the wall. For the last 45 years or so, the individual's privacy interest has been the focus of the 4th Amendment; something is a search or a seizure if it invades a person's zone of privacy. That zone is defined as one in which the individual has a subjective expectation of privacy, which society accepts as objectively reasonable. That was the basis for the 2nd District's ruling in Dayton v. Click back in 1994: one who had an outstanding arrest warrant had no reasonable expectation of privacy.

if you're looking for a more in-depth analysis, you're certainly not going to find it in Click: the "analysis" consists of two conclusory statements. For that matter, though, the opinion in Gardner provides little more depth; basically, it concludes that a person with an arrest warrant does have a reasonable expectation of privacy.

Let's break this down in a bit more detail.

We'll start with the subjective expectation of privacy. In Click, that was easy: Click gave the cops a false name, and when confronted with that, admitted he did so because he knew there were warrants out for him. But what if the defendant doesn't know about the warrant? He'd certainly have a subjective expectation of privacy in that case. If he didn't show up for a traffic ticket, is he charged with knowing that a warrant will be issued for him? And that he can be arrested for that?

Then we get to the objective part of the test: whether society is willing to recognize that privacy interest. This is where you get to the difference between lawyers and real people. Lawyers will accept the idea that society won't recognize a privacy interest in a person who's gotten a warrant out for him, but I bet if you asked the average person, "if somebody's got a warrant, and they don't know about it, do you think the police should be able to pull them over for no reason?" you'd get a different answer. Perhaps the best indication of the objective reasonableness of the privacy interest is that the cops themselves recognize it: they're not pulling people over for no reason, on the off-chance they have an arrest warrant.

Yet. That brings us to another "objective" test, and an argument in support of the state's position. Probable cause (or reasonable suspicion) is measured objectively from the officer's viewpoint, not subjectively. The police officer may have ulterior motives for making a traffic stop -- like, maybe 90% of the time in the inner city -- but as long as he has an objective basis for it (a traffic violation, like changing lanes without signaling, will do nicely), the stop's valid. An arrest warrant gives justification for a stop, so, when the objective facts show that there was a warrant, then it doesn't matter whether the cops knew about it.

This gets us into the second core value, though. I've mentioned before that we're about the only country in the world with a strict exclusionary rule; many Western democracies don't have anything like it, and those which do, like Canada, balance the societal interests against the egregiousness of the police conduct. We don't. Again, the subjective beliefs of the cop are immaterial: if the constable has objectively blundered, the criminal goes free.

But there's a reason we do that. To a certain extent, we fought the Revolution over the 4th Amendment: widespread abuse of governmental power in conducting searches, especially with the general warrants, was one of the main grievances of the colonists, and was the chief abuse which the 4th Amendment was designed to prevent. Interestingly, both briefs in Gardner concentrate their arguments here the post facto situation. The state argues that the search becomes reasonable because the police find out there's a warrant, and Gardner argues that the police can't justify a stop by what they find as a result of it.

That's fine, but let's look at this from the front end: if we allow the police to make a stop for no reason, but permit the introduction of evidence nonetheless on the fortuity of whether the defendant had an arrest warrant, is that going to lead to more illegal stops? After all, that's the entire purpose of the exclusionary rule, and one of the core values of the 4th Amendment: to protect against government illegality.

There's simply no question that it's going to lead to more illegal stops, and we know where those stops are going to be made. Or more specifically, who's going to be stopped: the poor and minorities. They're already stopped more frequently. If the cops in Parma started stopping every white guy who pulled away from the curb without putting on his turn signal, there'd be rioting at the City Council meetings, but that's a common occurrence in the inner city. And this will only make it worse. Since poor people are more likely to be stopped, they're more likely to get tickets, and they're less likely to show up in court for them, or less likely to be able to make the payments on it, so there's a warrant issued for them for that. The cops know that. That doesn't mean they'll pull someone over for no reason, hoping that the driver has a warrant. But it does mean that that will enter their calculus of whether reasonable suspicion exists, and the net result is that searches which cross the line and would otherwise lead to the suppression of evidence will be upheld because a warrant turned up. And that means there will be more searches like that.

I'm not sure how much of that will come up in the oral argument. I'll also be interested to see if something else comes up, that hasn't really been addressed up to now: the fact that Gardner was a passenger in the car, and that it was the driver who had the warrant. How did the driver's warrant affect Gardner's expectation of privacy?

We'll talk about that next week.


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