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An encomium to the 4th Amendment

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Quick quiz time. Name the author of the following quotes on search and seizure law:

  • "The exclusionary rule and the concomitant suppression of evidence generate substantial social costs in permitting the guilty to go free and the dangerous to remain at large. Because of that costly toll, the courts must apply the exclusionary rule cautiously and only in cases where its power to deter police misconduct outweighs its costs to the public."
  • "There is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist temptation. After all, Fourth Amendment freedoms are not second-class rights; they are indispensable to all members of a free society."

The answer to both: Ohio Supreme Court Chief Justice Maureen O'Connor.

The second quote is from the opinion in State v. Gardner, which the court handed down a few weeks ago. The first quote is from her lead opinion five years ago in State v. Oliver (discussed here). To be fair, it's not all her language; some of it is pulled from Justice Scalia's opinion in Michigan v. Hudson (briefly discussed here), which came out just a few months earlier. The Court in Hudson decided that failure of the police officers to knock and announce their presence before entering the premises would no longer be considered a constitutional violation, and Scalia used the ruling as an opportunity to launch into a jeremiad about the exclusionary rule. Chief Justice Roberts did much the same thing three years later in Herring v. US, (discussed here).

Given the language in Oliver, and the generally jaundiced view expressed toward a rule which requires relevant evidence of significant crime to be suppressed merely because "the constable blundered," I wasn't too sanguine about the prospects for Gardner. As I explained in my preview of the oral argument, the 2nd District adopted the view back in 1994 that someone who had an arrest warrant issued for him had no expectation of privacy, and therefore no standing to object to a police stop and frisk of him, even if the police didn't know about the warrant and otherwise had no basis for the stop. Last year in Gardner the 2nd changed its mind, and the Supreme Court accepted review. And last week, the Supreme Court affirmed, with O'Connor apparently channeling Thurgood Marshall in writing the opinion for a unanimous court.

To be sure, most of my qualms about the potential outcome in Gardner dissipated after the oral argument; as I mentioned in my discussion of the oral argument, if you're the prosecutor in a 4th Amendment case and you're getting a hard time in oral argument from the reliably conservative Justice O'Donnell, who'd be more likely to become an aficionado of gangsta rap than suppress evidence, you know you're having a bad day.

So, we have a great decision from the Ohio Supreme Court on the 4th Amendment. What rule of law can we draw from it which can be applied to future cases?

Sadly, not much. In my preview of the oral agument in Gardner,I'd mentioned that neither of the 2nd District decisions -- the one creating the rule, and the one reversing it -- provided much analysis: the former provided a paragraph containing two conclusory statements that a person with a warrant forfeited any privacy expectation, and the latter contained a sentence or two saying that he didn't. The Supreme Court's decision continues that legacy. The opinion is one long extolment of the values and virtues of the 4th Amendment; the closest the court gets to any real analysis is in response to the State's argument that an arrest warrant gives the police the right to enter an individual's home: "the holding in those cases presupposes that the police knew that there was a warrant for the individual's arrest when entering a home to make an arrest." True that, but why does it matter?

It's sort of too bad, because Gardner did present some key questions which do indeed go the core of the protections provided by the 4th Amendment: an individual's expectation of privacy. Still, if Gardner does no more than provide some nice dicta about the importance of the 4th Amendment to our concept of liberty the next time we have to do a brief on a search and seizure issue, it will have served its purpose. God knows we have few of those as it is.


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