Rescuing Search and Seizure

Our hands-off attitude toward aggressive search and seizure arises out of a misreading of the Constitution. The Fourth Amendment doesn't mean what we think

STEVEN Dewayne Bond was on a Greyhound bus traveling from California to Little Rock, Arkansas, when the bus stopped at a permanent Border Patrol checkpoint at Sierra Blanca, Texas, and a Border Patrol agent, Cesar Cantu, came on board to check for illegal aliens. Cantu worked his way back through the bus and then started toward the front. As he walked up the aisle, he gave each bag in the overhead racks what he termed a "squeeze." When he got to Bond's bag, he felt a "brick-like" object. Cantu asked Bond if he could look in the bag. Bond said he could. When Cantu opened it, he found that the "brick" consisted of a considerable quantity of methamphetamine wrapped in duct tape. Bond was arrested, charged under federal drug laws, and convicted.

Last spring the case reached the U.S. Supreme Court. In a brisk and brief 7-2 decision the Court held that the drugs should not have been allowed as evidence at Bond's trial, because they were the fruit of a search that violated the Fourth Amendment's prohibition on unreasonable searches and seizures. His conviction was overturned.

In another Fourth Amendment case decided by the Court last spring, the police in Miami had received an anonymous tip that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a concealed gun. Police officers went to the bus stop, saw a teenager who matched the description, frisked him, found a gun, and arrested him. The Court ruled unanimously that the tip lacked "sufficient indicia of reliability" to establish that a crime might have been committed, and thus that the trial court, which had barred admission of the gun into evidence, had acted correctly.

These cases are very much of a piece with the modern jurisprudence of the Fourth Amendment. Virtually every search-and-seizure case the Supreme Court has decided in the past century arose when a criminal defendant claimed that evidence used against him was obtained by an illegal search -- usually because the police did not strictly follow the complex set of rules the courts have erected for warrantless searches. Virtually every time the Court has agreed, it has ruled that the seized evidence must be excluded.

The familiar debate over the Supreme Court's interpretation of the Fourth Amendment turns on this point of exclusion of evidence. Conservatives have bitterly attacked the process that lets criminals off on "technicalities." Liberals have staunchly defended the exclusionary rule as necessary to protect the rights of defendants and to ensure fair play and as a deterrent that keeps police officers from overstepping bounds in their treatment of the public at large.

Akhil Reed Amar, a Yale Law School professor who has written several highly original analyses of the Bill of Rights, argues that a much broader debate ought to be taking place. Both liberals and conservatives, he says, should be outraged over the way the Fourth Amendment has become trapped in a never-never land. There is little to cheer either civil libertarians or law-and-order conservatives in what Amar unabashedly calls the "screwy" and "perverse" "jumble of judicial pronouncements" on the law of search and seizure -- rules that not only let the clearly guilty go free but, in his view, fail to protect the innocent from the very sorts of harassment and abuse by government officials that the amendment was designed to prevent. The Fourth Amendment "is a priceless constitutional inheritance," he has written, "but we have not maintained it well."

Amar's views stand strikingly outside the usual left-right debate, and he himself defies easy categorization. His law-review articles and books on constitutional law -- most recently (1998) -- have been praised and attacked on both the left and the right. Although often labeled a conservative, Amar is a passionate civil libertarian, feminist, and civil-rights advocate. The son of Indian immigrants, both physicians, he grew up in the San Francisco area, attended Yale and Yale Law School, and clerked for Judge Stephen Breyer on the U.S. Court of Appeals. (Breyer was later appointed to the Supreme Court by President Clinton.) Returning to Yale as an assistant professor at age twenty-six, he rose rapidly in academia, becoming a full professor at thirty-one and being named the Southmayd Professor of Law at thirty-four.

Amar is also well versed in history -- something that sets him apart from most legal scholars, who are trained to look to recent precedents. Amar looks to the earliest precedents; his writings are full of English cases from the eighteenth century and the views of Revolutionary politicians and pamphleteers. In the lexicon of constitutional interpretation, that makes him an "originalist": he wants to understand what the words in the Constitution "really mean" and what the Framers understood when they wrote them.

Those who advocate a return to "original intent" are of course usually conservatives who complain that "judicial activists" have manufactured new rights not found literally in the Constitution -- for example, the Supreme Court's decision that the Fourteenth Amendment right to liberty protects a woman's right to an abortion. But Amar's originalism sometimes leads him to very radical conclusions. He finds, for example, that the Constitution confers both an individual right to keep arms and a right to serve in the militia, which means that keeping women out of combat and homosexuals out of the military raises serious constitutional concerns.

On the Fourth Amendment, Amar insists that by disregarding its historical context and the historical wrongs it was meant to right, the Court has actually allowed a fundamental civil right to wither. "It's not just that the bad guys are going free," Amar explained to me over a recent lunch in New Haven; "innocent people are actually worse off" as well.

Amar's Fourth Amendment critique begins with the Talmudic distinctions that have characterized the Supreme Court's rulings in recent years. The root of the problem is the Court's finding that all searches and seizures normally require a warrant, or at the very least probable cause of criminal activity, which forces the Court into all sorts of contortions to justify some warrantless searches. If Steven Bond's case was true to form in arising from a question of excluding evidence in a criminal case, it was also true to form in the way it turned on an almost bizarre semantic issue. In its ruling in Bond v. United States the Court did not even explore the question of whether the agent Cesar Cantu had been acting "reasonably." Instead, as in almost every other recent search-and-seizure case, the Court focused on whether a search had in fact taken place. A lower court had held that giving a bag a squeeze is not a search. The Supreme Court majority reversed that finding, holding that a squeeze -- or at least a hard squeeze -- is a search.

Some of the Court's findings on when a search is a search would seem to owe more to Lewis Carroll than to the Talmud. Squeezing luggage is a search, but having a dog sniff luggage is not. Hovering in a helicopter 400 feet over someone's yard and looking into his greenhouse is not a search, nor is climbing over a farm fence and trespassing across a private field to peer into the owner's barn -- but attaching a listening device to the outside of a public telephone booth to catch a bookie phoning in his bets is a search. The majority in Bond suggested that if Cantu had subjected the bag only to "touching" or "handling" rather than "feel[ing] the bag in an exploratory manner," he might have been acting legally. In a dissenting opinion an exasperated Justice Breyer complained that the Court was now erecting a "constitutional jurisprudence of squeezes" that will only further complicate the already convoluted rules the Court has created in Fourth Amendment law.

Certainly, these rules are hard for a layperson to make much sense of. Even more bewildering than the rules for when a search is a search are the exceptions the Court has carved out to its "warrant requirement." These include an "arrest exception" (the police may arrest -- that is, seize -- someone without a warrant, as they have for hundreds of years under common law); an "incident to arrest exception" (the police may search an arrested person and the immediate vicinity); an "exigent circumstances exception" (the police may act without a warrant in a fast-breaking situation or if a crime is in progress); a "stop-and-frisk" exception (police officers who have observed "unusual conduct" may stop a person and, to ensure their own safety while questioning the suspect, may carry out a "carefully limited" search of his outer clothing -- but only his outer clothing -- for weapons); and myriad special exceptions of "compelling interest" to the government, such as airport metal detectors, border searches, and auto-emissions tests.

is a correspondent for The Atlantic. His book about code-breaking in World War II, will be published this month.

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The Atlantic Monthly; October 2000; Rescuing Search and Seizure - 00.10 (Part Two); Volume 286, No. 4; page 34-45.