Volume 152, No. 137
14, July, 2006
Boyd Ruling Still Shows
Some Signs of Life
In my May 17 column, I discussed the rise and fall of the idea that a
connection exists between the Fourth Amendment and the SelfIncrimination Clause of the Fifth Amendment. Today we will look at
some recent scholarship showing a renewed interest in the
connections between these two constitutional provisions.
Here is a quick summary. In 1886 the U.S. Supreme Court dealt with a
request by the federal government that a Mr. Boyd turn over certain
records that might indicate that he had not paid taxes on imports. The
U.S. Supreme Court ruled that this request violated both the Fourth
Amendment and the Self-Incrimination Clause. The court found the
seizure of his personal papers ''unreasonable'' and thus a violation of
the Fourth Amendment. But the court also held that the order constituted improper ''compulsion''
under the Self-Incrimination Clause. In thus carving out an area of privacy, the Court held that the
two constitutional provisions ''run almost into each other.'' Boyd v. U.S., 116 U.S. 616 (1886).
For many years, some believed that this synergy created an area from which the government was
absolutely barred. For example, as late as 1967 Justice William O. Douglas wrote that Boyd and its
progeny created ''a zone of privacy that may not be invaded either by the police through raids, by
the legislators through laws, or by magistrates through the issuance of warrants.'' Warden v.
Hayden, 387 U.S. 294, 313 (1967) (Douglas, J., dissenting). But the Warren court rejected this view
in two ways. First, it restricted the scope of the Self-Incrimination Clause by holding that it only
protected a person from being compelled to provide evidence of a testimonial or communicative
character. Thus, for example, it did not prevent the government from obtaining a blood draw from a
person in a DUI case. Schmerber v. California, 384 U.S. 757 (1966). Second, it rejected the rule that
had held that the Fourth Amendment would only allow the government to seize items for which it
had a superior property interest — i.e., fruits of a crime, instrumentalities, and contraband. Instead,
the court held that the government was now allowed to seize ''mere evidence'' as long as it aided
the government's investigation.
This meant that the Fourth Amendment was now seen as merely providing a procedural protection
— guaranteeing a warrant and probable cause — without having a substantive component that also
held that some items were completely ''off-limits'' to the government.
Justice Sandra Day O'Connor reflected the conventional wisdom in 1984 when she noted that the
Supreme Court's decisions had ''sounded the death knell for Boyd.'' U.S. v. Doe, 465 U.S. 605, 618
(1984) (O'Connor, J., concurring).
Yet Michael Pardo argues ''the Boyd view is not as crazy as conventional wisdom has it.'' Michael S.
Pardo, Disentangling the Fourth Amendment and the Self-Incrimination Clause, 90 Iowa Law
Review 1857, 1873 (2005). Although the details of the Boyd decision may have been wrong, Pardo
asserts that the opinion was basically correct in seeing an important relationship between the
Fourth Amendment and the Self-Incrimination Clause.
Pardo stresses that both amendments ''regulate government attempts to gather information from
citizens.'' Rather than viewing the Fourth Amendment and the Self-Incrimination Clause as an
''either-or'' proposition, they should be seen as overlapping in their response to government
attempts at evidence gathering. He sees the proper relationship as embodying a two-part test. The
first part concerns the Fourth Amendment. This part asks whether the government's attempt to
gather evidence is ''reasonable.'' If it is not reasonable, the government may not do so and the
inquiry ends. However, if the government's behavior is reasonable under the Fourth Amendment,
the analysis then moves to the second part — the Fifth Amendment part — of the test. This asks
whether the government's actions can be construed as the compulsion of testimony in a criminal
case. If so, the government is barred from the use of such evidence.
Pardo applies this test to an issue that has created a federal circuit split: whether prosecutors may
use a suspect's pre-arrest silence as substantive evidence of guilt at trial. One line of cases holds
that the government may use defendant's silence as substantive evidence if the silence occurred
before he was taken into custody and given Miranda warnings. See, e.g., U.S. v. Rivera, 944 F.2d 1563
(11th Cir. 1991). Another line of cases says the giving vel non of Miranda is irrelevant, and that
silence cannot be used as substantive evidence against the defendant. See, e.g., Savory v. Lane, 832
F.2d 1011 7th Cir. (1987). Pardo's analysis begins by inquiring whether the government's attempt
to obtain evidence was unreasonable under the Fourth Amendment. He notes that the government
always has the right to try to obtain evidence by asking questions of a person, as long as the person
has not been seized and he is free to terminate the questioning. The government's actions therefore
do not run afoul of the Fourth Amendment.
Since there is no Fourth Amendment violation, Pardo then turns to the Fifth Amendment inquiry:
whether the evidence gathered involved the government's attempt to compel evidence from the
mind of the accused to use against him at a criminal trial. Pardo concludes that the government
behavior forces the suspect into the classic ''cruel trilemma'': incriminate himself, commit perjury,
or pay a penalty for his silence. Therefore, whenever government questioning triggers silence, the
Self-Incrimination Clause applies and government may not use silence as substantive evidence
against the suspect at trial. Pardo's test revives Boyd's insistence that there is a connection between
these two constitutional provisions.
Michael Mannheimer offers a different take on the relationship between the Fourth Amendment
and the Self-Incrimination Clause. Michael J. Zydney Mannheimer, Coerced Confessions and the
Fourth Amendment, 30 Hastings Constitutional Law Quarterly 57 (2002). Mannheimer contends
that courts should no longer view coerced confessions merely as violations of general due process.
Rather, he argues that coerced confessions are more properly broken down into two discrete parts:
the extraction of the confession and its later use at trial. And each of these parts implicates a
different constitutional provision.
The extraction of the confession is better viewed through a Fourth Amendment lens. The Fourth
Amendment, after all, is concerned with ensuring that the government acts reasonably when it
seizes a person and searches for evidence. A confession obtained through circumstances that
violate due process is better viewed as the result of an unreasonable search and seizure. And,
rather than simply a due process violation, the later use of the confession at trial is more accurately
viewed as compelling the person to be a witness against himself in violation of the SelfIncrimination Clause. Thus, Mannheimer argues that these two discrete constitutional provisions
deal more accurately with coerced confessions than does a simple due process analysis. Finally, I
would contend that even the quintessential Fifth Amendment case — Miranda v. Arizona, 384 U.S.
436 (1966) — may be more properly viewed as a case combining Fourth Amendment, as well as
Self-Incrimination Clause, principles.
Consider that a suspect in a custodial interrogation situation has a ''reasonable expectation of
privacy'' over his thoughts. Katz v. U.S., 389 U.S. 347 (1976). Interrogation can be characterized as
the government's ''searching'' his mind and ''seizing'' his answers. Thus, a custodial interrogation
can be characterized as a warrantless search and seizure under the Fourth Amendment.
Of course, there is nothing wrong with a warrantless search if a person consents. But the problem
with custodial interrogation is that the atmosphere may fool the person into believing that he has a
duty to answer the questions. Although usually the police have no duty to warn a person that he has
the right to refuse consent to a warrantless search, the U.S. Supreme Court has left open the issue of
whether this applies to a person in custody. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49
(1973).
Thus, Miranda warnings can be seen as something more than an opportunity for the police to obtain
a suspect's waiver of his Fifth Amendment right against self-incrimination. The warnings and
waiver can alternatively be considered a device for obtaining a suspect's Fourth Amendment
''consent'' to a warrantless search of his mind, i.e., custodial interrogation. See Timothy P. O'Neill,
Rethinking Miranda: Custodial Interrogation as a Fourth Amendment Search and Seizure, 37 U.C.
Davis Law Review 1109 (2004).
Where does this leave us? While no one is advocating a complete return to the world of Boyd, there
is a growing body of thought asserting that the U.S. Supreme Court's reports of Boyd's death may
have been slightly exaggerated. The relationship between the Fourth Amendment and the Fifth
Amendment's Self-Incrimination Clause is definitely worth a closer look.