1019
ZEALOUS OFFICERS AND NEUTRAL
MAGISTRATES: THE RHETORIC
OF THE FOURTH AMENDMENT
DAVID
E.
STEINBERGt
TABLE OF CONTENTS
INTRODUCTION ..........................................
I. THE ORIGINAL UNDERSTANDING: A LIMITED
FOURTH AMENDMENT ...........................
II. FOURTH AMENDMENT RHETORIC:
DANGEROUS LAW ENFORCEMENT,
IMPARTIAL MAGISTRATES .......................
A. THE PREMISE: RESPONSIBLE MAGISTRATES,
IRRESPONSIBLE COPS .............................
B.
"UNBRIDLED DISCRETION" .. ........................
C.
PLACING THE MAGISTRATE BETWEEN THE
POLICE AND CITIZENS ...............................
D.
E.
1023
1023
1026
1027
ENFORCEMENT OFFICERS ............................
1029
SUMMARY ...........................................
1030
REVIEW ON APPEAL .................................
D. SUMMARY ...........................................
IV. THE RISE OF POLICE PROFESSIONALISM .......
A.
B.
1021
THE "HURRIED JUDGMENT" OF LAW
III. THE REALITY OF JUDICIAL INVOLVEMENT:
LIMITED REVIEW AND EXPERIENCE ............
A. LIMITED REVIEW OF WARRANT APPLICATIONS ......
B. MAGISTRATE QUALIFICATIONS .....................
C.
1020
1031
1031
1033
1035
1037
1037
POLICE REVIEW AND DISCIPLINE ..................
1038
1041
V. THE EMERGING RHETORIC OF POLICE
RESPONSIBILITY ..................................
CONCLUSION .............................................
1042
1045
POLICE TRAINING ...................................
t Professor, Thomas Jefferson School of Law. B.A., Northwestern University;
J.D., Stanford Law School. My thanks to the Thomas Jefferson School of Law, for generous research funding.
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INTRODUCTION
1
Words matter. Language influences how we view legal issues.
Through word choices, courts attempt to shape our approaches to legal
problems.
With respect to the Fourth Amendment, 2 language certainly matters. 3 Fourth Amendment doctrine repeatedly suggests that police officers are not trustworthy and are likely to abuse their discretion. As
a result, courts must intervene to protect citizens from law enforcement. To make this distinction between courts and law enforcement,
as "zealous officers" and describe
judges describe law enforcement
4
courts as "neutral magistrates."
In a variety of ways, Fourth Amendment opinions suggest this
contrast between neutral, detached, and principled magistrates on the
one hand, and zealous, competitive, and unrestrained law enforcement officers on the other hand. Recently, the Supreme Court of the
United States invoked this comparison to invalidate a search and
seizure. In the recently decided Arizona v. Gant,5 , the Court relied on
this rhetoric to invalidate a warrantless search of a car. According to
the Gant majority, the Fourth Amendment addresses "the concern
discretion to rummage at will
about giving police officers unbridled
6
among a person's private effects."
This Article suggests that the Court's distinction between "neutral" magistrates and "zealous" police officers is seriously misleading.
The rhetoric does not account for the training and accountability of
law enforcement. Nor does this rhetoric acknowledge that some magistrates lack training, and that warrants receive limited appellate
review.
Part I of this article reviews the limited Fourth Amendment envisioned by the framers of the amendment. The Supreme Court's current Fourth Amendment activism does not find support in the original
understanding of the amendment. Through the use of rhetoric, the
Court has attempted to create a broad role for judges in regulating
searches and seizures.
1. See, e.g., Laura E. Little, Hiding with Words: Obfuscation,Avoidance, and Federal JurisdictionOpinions, 46 UCLA L. REV. 75, 80 (1998) (noting that "Supreme Court
Justices use rhetoric to construct and legitimize interpretations of the United States
Constitution"); Mary Ellen Maatman, Choosing Words and Creating Worlds: The Supreme Court's Rhetoric and Its Constitutive Effects on Employment DiscriminationLaw,
60 U. Prrr. L. REV. 1, 7 (1998) (judges use "rhetorical devices to prompt the conclusion
that the decision at hand is just and sensible").
2. U.S. CONST. amend. LV.
3. Id.
4. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948).
5. 129 S. Ct. 1710 (2009).
6. Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009).
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THE RHETORIC OF THE FOURTHAMENDMENT
1021
Part II examines the Supreme Court's rhetoric, which distinguishes between reliable magistrates and untrustworthy police officers. In describing magistrates, the Court's Fourth Amendment
opinions have used words such as "neutral," "impartial," "objective,"
and "deliberate." In contrast, the Court has described law enforcement agents as "zealous" officers, who make "hurried judgments." According to the Court, only the magistrates who review warrant
applications can protect the public from law enforcement officers seeking to violate privacy through their "unbridled discretion."
Part III questions the Court's unconditionally positive description
of the judicial officers who review warrants. Magistrates often receive
boilerplate warrant applications, which they routinely approve in a
matter of minutes. The Supreme Court has shown no inclination to
intervene, subjecting probable cause findings only to the most deferential review. Such minimal review is perhaps inevitable because some
magistrates have no formal legal training.
Part IV demonstrates that the Court's cynical portrayal of law enforcement officers is similarly misguided. The Court's rhetoric does
not recognize the rise of professional police departments. In these departments, officers receive considerable Fourth Amendment training
and face discipline when search and seizure mistakes result in an exclusion of evidence.
Part V identifies a few opinions suggesting a different rhetorical
approach to the Fourth Amendment. In these opinions, the Court has
recognized an officer's training and experience as positive factors. But
these few opinions remain isolated exceptions, with most Fourth
Amendment opinions continuing to describe law enforcement officers
as incompetent and dangerous.
I.
THE ORIGINAL UNDERSTANDING: A LIMITED FOURTH
AMENDMENT.
Before examining the rhetoric of the Fourth Amendment, 7 this
Article considers the very limited role for the amendment envisioned
by the framers - far more limited than the scope of the amendment
today. Because the text and history do not support expansive interpretations of the Fourth Amendment, the Supreme Court of the
United States has needed another source for its authority. The Court
has turned to rhetoric.
The Fourth Amendment conceived by the framers was a narrow
document. The language of the amendment does not explicitly invoke
broad judicial involvement. The amendment prohibits "unreasonable
7.
U.S. CONST. amend. IV.
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searches and seizures," s without offering any definition for the term
"unreasonable." The amendment also provides that "no Warrants
shall issue, but upon probable cause."9 Notably, the amendment does
not mandate that a neutral and detached magistrate must issue the
warrant, although modern Fourth Amendment decisions regularly
emphasize such a requirement. 10 This omission is particularly noteworthy, because warrants in the eighteenth century sometimes were
not issued by judicial officers. 1 1 In short, the language of the Fourth
Amendment did not explicitly mandate wide ranging judicial regulation of searches and seizures.
Beyond the plain language, additional historical evidence suggests the framers intended that the Fourth Amendment would be a
narrow document. First, the Fourth Amendment applied only to the
federal government, not to the states. 12 Yet in early America, the
overwhelming majority of criminal searches and prosecutions took
place under state law. 13 Given the very limited scope of federal law
enforcement, the Fourth Amendment was relevant only on rare
occasions. 14
Even at the federal level, the framers did not intend that the
Fourth Amendment would regulate a broad variety of searches and
seizures. As I have written elsewhere, the framers "were focused on a
single, narrow problem-physical invasions of houses by government
agents." 15 The framers sought to address this problem with a bright
line rule: "Before entering a house, law enforcement officers typically
would need to obtain a specific warrant." 16 With respect to other
8. Id.
9. Id.
10. See, e.g., Johnson v. United States, 333 U.S. 10 13-14 (1948). For further discussion of the use of rhetoric in Johnson,see infra notes 22-40 and accompanying text.
11. In the John Wilkes cases of 1763, a general warrant was issued by the English
Secretary of State. See William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 886-87 (1990) (unpublished Ph.D. dissertation, Claremont Graduate
School) (on file with author). Conversely, in Paxton's case of 1755, a customs agent
received a writ of assistance from the Superior Court in Boston. Id. at 760-61.
12. See, e.g., Smith v. Maryland, 59 U.S. 71, 76 (1855) (rejecting a Fourth Amendment challenge to a Maryland state statute, because the Fourth Amendment applied
only to the federal government).
13. See, e.g., Sara Sun Beale, FederalizingCrime: Assessing the Impact on the Federal Courts, 543 ANNALS Am.AcAD. POL. & Soc. Sci. 39, 40 (1996) (discussing the very
limited scope of early federal criminal law).
14. See Thomas J. Maroney, Fifty Years of Federalizationof CriminalLaw: Sounding the Alarm or Crying Wolf?, 50 SYRACUSE L. REV. 1317, 1319 (2000) (early federal
criminal law specified only seventeen offenses).
15. David E. Steinberg, An Original Misunderstanding:Akhil Amar and Fourth
Amendment History, 42 SAN DIEGO L. REV. 227, 230 (2005).
16. Id.
2010]
THE RHETORIC OF THE FOURTH AMENDMENT
1023
types of searches and seizures, the Fourth Amendment was simply
inapplicable.17
The modern Fourth Amendment is nothing like the framers' original conception of the amendment. Instead, the Supreme Court has
applied the amendment to a wide variety of searches, many of which
have nothing to do with a physical invasion of a house. For example,
the Court has applied the Fourth Amendment in cases involving20traf19
8
fic checkpoints, 1 random drug tests, and searches at schools.
Neither the text nor the history of the Fourth Amendment authorizes broad judicial regulation of searches and seizures. For the judicial branch to exercise such power, judges must find another source
for this authority. As a result, the Supreme Court has turned to rhetoric. 2 1 Time and again, the language of Fourth Amendment opinions
describes a contrast between neutral and objective magistrates, as opposed to zealous and overreaching law enforcement officers.
II.
FOURTH AMENDMENT RHETORIC: DANGEROUS LAW
ENFORCEMENT, IMPARTIAL MAGISTRATES.
A.
THE PREMISE: RESPONSIBLE MAGISTRATES, IRRESPONSIBLE COPS.
The Supreme Court of the United States rhetoric describing judicial integrity and abusive police officers has deep roots in Fourth
Amendment 2 2 doctrine. A particularly clear statement of this concern
appeared as early as 1948, in a majority opinion by Justice Louis
Brandeis. In Johnson v. United States,23 Justice Brandeis wrote:
The point of the Fourth Amendment, which often is not
grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable
17. Id. See also David E. Steinberg, The Original Understandingof Unreasonable
Searches and Seizures, 56 FLA. L. REV. 1051, 1053 (2004) ("[Tihe Fourth Amendment
was intended to proscribe only a single, discrete activity - physical searches of houses
pursuant to a general warrant, or no warrant at all.").
18. Compare City of Indianapolis v. Edmond, 531 U.S. 32, 41-44 (2000) (a random
narcotics checkpoint violated the Fourth Amendment), with Michigan Dep't of State
Police v. Sitz, 496 U.S. 444, 451 (1990) (a random narcotics checkpoint did not violate
the Fourth Amendment).
19. Compare Bd. ofEduc. v. Earls, 536 U.S. 822, 826 (2002) (random drug tests of
students who participated in extracurricular athletics did not violate the Fourth
Amendment), with Chandler v. Miller, 520 U.S. 305, 313-23 (1997) (random drug testing of candidates for state office violated the Fourth Amendment).
20. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985) (holding that a high
school vice principal could search a student's purse, when the vice principal had "reasonable grounds" to believe that the student had violated a school rule).
21. See George R. Nock, The Point of the FourthAmendment and the Myth of Magisterial Discretion,23 CONN. L. REV. 1, 2-3 (Fourth Amendment rhetoric was developed
by "the Court's liberals, who used it to build an expanded warrant-preference rule.").
22. U.S. CONST. amend. IV.
23. 333 U.S. 10 (1948).
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men draw from evidence. Its protection consists in requiring
that those inferences be drawn by a neutral and detached
in
magistrate instead of being judged by the officer engaged
24
the often competitive enterprise of ferreting out crime.
Justice Brandeis' statement in Johnson is one of the most commonly quoted descriptions of the principles that resulted in the Fourth
Amendment. 25 The statement has been cited in opinions including
Californiav. Acevedo, 2 6 Payton v. New York, 2 7 and many others.
At first glance, Justice Brandeis' statement may seem innocuous.
A closer look, however, indicates powerful judgments about law enforcement officers and judicial magistrates.
Justice Brandeis' statement began by asserting that the point of
the Fourth Amendment "often is not grasped by zealous officers." Officers who have not "grasped" the point of the Fourth Amendment are
presumably dumb, uneducated, or simply consumed with making arrests and putting people in jail.
Justice Brandeis' description of these officers with the word "zealous" further suggested a single-minded commitment to arrests and incarceration. The word "zealous" derives from the zealots, a first
century Jewish sect that controlled Jerusalem for a short time. The
zealots typically are portrayed as fanatical ideologues. For example,
Webster's New Collegiate Dictionary described the zealots as "a fanatical sect arising in Judea during the first century A.D." 28 Historians
also have described the zealots as the first terrorists. The group attempted to achieve political goals through random assassinations of
29
Roman officials and Jews, who collaborated with the Romans.
If we accept Justice Brandeis' characterization of law enforcement
officers as "zealous," what are they zealous or fanatical about? According to Justice Brandeis, the zealous behavior related to "the often
competitive enterprise of ferreting out crime." This statement suggested that law enforcement officers approach their work much like a
capitalist business. But instead of an obsession with maximizing profits, the officers are obsessed with maximizing arrests.
Justice Brandeis contrasted this entirely unflattering image of
the law enforcement officer with the "neutral magistrate," - the judi24. Johnson v. United States, 333 U.S. 10, 13-14 (1948).
25. Nock, supra note 21, at 2 (describing Justice Jackson's statement as "one of the
most frequently cited statements in Supreme Court history").
26. 500 U.S. 565 (1991).
27. 445 U.S. 573 (1980).
28. See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1370 (1988).
29. See FLAvIus JosEpHus, Wars of the Jews, in THE COMPLETE WORKS OF FLAvIUs
JOSEPHUS 526-27 (William Whiston trans., Kregel Pub. 1974); Parvez Ahm, Terror in
the Name of Islam - Unholy War, Not Jihad, 39 CASE W. RES. J. OF INT'L L. 759, 784
(2007-08).
2010]
THE RHETORIC OF THE FOURTH AMENDMENT
1025
cial officer authorizing searches. Justice Brandeis' choice of the word
"magistrate" is particularly remarkable. The word "magistrate" dates
from the Roman Republic. Magistrates were the highest ranking executives in the Roman Republic, and the consuls were the highest
ranking magistrates. Each year in the republic, two consuls were
elected. The consuls had authority over all civilian and military matters.30 In addition to their executive duties, magistrates exercised ju31
dicial powers.
Rather than using the term "magistrate," a more accurate
description of the judicial officer who issued warrants would have
been the term "justice of the peace." When the framers drafted the
Fourth Amendment, they probably envisioned that justices of the
peace would issue warrants. Professor Fabio Arcila wrote that in
early America, justices of the peace were "the non-elite judges who
actually issued search warrants." 3 2 Yet Justice Brandeis used the
term "magistrate," and not "justice of the peace." Presumably, the
term "justice of the peace" did not sound nearly as majestic - or superior - as the term magistrate.
Having classified the person issuing the warrant as a "magistrate," the Court then typically describes the magistrate with an adjective. The adjective always describes the magistrate as thoughtful
and objective - terms that are never used for law enforcement officers.
The adjectives that Justice Brandeis used to describe the magistrate
were "neutral" and "detached." 33 Other terms the Justices have used
include "impartial magistrate," 34 "objective magistrate,"3635 and the "informed and deliberate determinations of magistrates."
The contrast between "impartial" judicial magistrates and (presumably partial) law enforcement officers appears throughout the
Court's Fourth Amendment decisions. In Wong Sun v. United
30. See, e.g., ROBERT BYRD, THE SENATE OF THE RoMAN REPUBLIC 20 (1995). See
also Louis J. Sirico, Jr., The Federalistand the Lessons of Rome, 75 Miss. L. J. 431, 455
(2006) (noting the two-consul structure).
31. Scott D. Gerber, The Court,the Constitution,and the History of Ideas, 61 VAND.
L. REV. 1067, 1097 (2008). ("The consuls, along with lesser magistrates appointed by
them, exercised the majority of the judicial functions.").
32. Fabio Arcila, Jr., The Framers' Search Power: The Misunderstood Statutory
History of Suspicion and Probable Cause, 50 B.C. L. REV. 363, 376 (2009). See also
Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and ProbableCause, 10 U. PA. J. CONST. L. 1, 24-36 (2007) (justices of
the peace issued warrants during the framing era).
33. Johnson, 333 U.S. at 13-14.
34. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 282 (1973) (Marshall, J.,
dissenting); Griffin v. Wisconsin, 483 U.S. 868, 876 (1987).
35. Mincey v. Arizona, 437 U.S. 385, 395 (1978).
36. See, e.g., Georgia v. Randolph 547 U.S. 103, 117 (2006); United States v. Lefkowitz, 285 U.S. 452, 464 (1932).
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States,3 7 the Court lauded the arrest warrant procedure, which
"serves to insure that the deliberate, impartial judgment of a judicial
officer will be interposed between the citizen and the police." 38 In
Katz v. United States,3 9 the Court struck down a warrantless wiretap,
because the officers had not been required "to present their estimate
40
of probable cause for detached scrutiny by a neutral magistrate."
In cases subsequent to Johnson, the Court has added more details
to its negative image of law enforcement officers. In executing
searches, officers possess "unbridled discretion" and make "hurried
judgments." Because law enforcement officers are so untrustworthy,
the Fourth Amendment protected citizens when it "interposed a magistrate between the citizen and the police." The Court's negative
terms for law enforcement officers receive further discussion below.
B.
"UNBRIDLED DISCRETION."
Concerns about police officer discretion are particularly common
in Fourth Amendment decisions issued by the Supreme Court of the
United States. The mere fact that officers exercised discretion is unremarkable. Discretion is an inherent part of any job - including the
job of a Supreme Court Justice. But in Fourth Amendment cases, the
Justices frequently suggest that police officers routinely abuse their
discretion - unless they receive heavy judicial oversight.
Rather than using the term "abuse of discretion," the Justices
tend to use "unbridled discretion" as a substitute. A clear statement
of this abuse of discretion concern occurred in Arizona v. Gant,4 1 cited
at the outset of this article. According to the Gant decision, the
Fourth Amendment addresses "the concern about giving police officers
unbridled discretion to rummage at will among a person's private
effects."42
Justice William J. Brennan's opinions demonstrated a particular
fondness for hypothetical fears about law enforcement's abuse of discretion. In a dissent that opposed a warrantless house search by
American law enforcement officers in Mexico, Justice Brennan asserted: "The need to protect those suspected of criminal activity from
the unbridled discretion of investigating officers is no less important
abroad than at home." 4 3 This echoed a similar statement authored by
37. 371 U.S. 471 (1963).
38. Wong Sun v. United States, 371 U.S. 471, 481-82 (1963).
39. 389 U.S. 347 (1967).
40. Katz v. United States, 389 U.S. 347, 356 (1967).
41. 129 S. Ct. 1710 (2009).
42. Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009).
43. United States v. Verdugo-Urquidez, 494 U.S. 259, 296 (1990) (Brennan, J.,
dissenting).
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THE RHETORIC OF THE FOURTH AMENDMENT
1027
Justice Brennan years earlier. In Wong Sun v. United States,44 the
Court struck down a warrantless arrest in a suspect's home. According to Justice Brennan's majority opinion: "To hold that an officer may
act in his own, unchecked discretion upon information too vague and
from too untested a source to permit a judicial officer to accept it as
probable cause for an arrest warrant," would subvert a "fundamental
policy" underlying the Fourth Amendment. 45 In this Wong Sun passage, Justice Brennan expressed his clear antipathy to situations
where a law enforcement agent might act on his own "unchecked discretion" without oversight from a "judicial officer."
In suggesting an abuse of discretion, the Justices failed to recognize that in Wong Sun and Gant, the officers possessed sound arguments that their conduct was lawful. In cases where the "unbridled
discretion" language appears, at least some members of the Supreme
Court typically voted to uphold the search or seizure. For example, in
Wong Sun, four justices dissented, concluding that the arrest did not
violate the Constitution. 4 6 In Gant, four justices again dissented, concluding that the warrantless car search did not violate the Fourth
47
Amendment.
In Wong Sun and Gant, a Court majority interpreted the Fourth
Amendment differently than did the law enforcement officers. However, to characterize the officers' conduct as an abuse of discretion - or
"unbridled discretion" - badly misrepresents the officers' conduct and
the applicable law.
C.
PLACING THE MAGISTRATE BETWEEN THE POLICE AND CITIZENS.
According to statements made by the Supreme Court of the
United States, the Fourth Amendment places the magistrate between
the police and the people. These opinions suggest that police officers
seek to overrun individual liberties in pursuit of arrests and imprisonment. Only the neutral magistrate - the champions of privacy and
liberty - can protect the people from police abuse.
An early statement of this concern appeared in McDonald v.
United States.48 Writing for the majority, Justice William 0. Douglas
asserted:
Absent some grave emergency, the Fourth Amendment has
interposed a magistrate between the citizen and the police.
This was done not to shield criminals nor to make the home a
44.
45.
46.
47.
48.
371 U.S. 471 (1963).
Wong Sun v. United States, 371 U.S. 471, 482 (1963).
Wong Sun, 371 U.S. at 498.
Gant, 129 S. Ct. at 1726 (Alito, J., dissenting).
335 U.S. 451 (1948).
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[Vol. 43
safe haven for illegal activities. It was done so that an objective mind might weigh 4the
need to invade that privacy in or9
der to enforce the law.
Justice Douglas continued that only magistrates - and not the police could be trusted to protect individual liberties. Justice Douglas wrote:
"Power is a heady thing; and history shows that the police acting on
their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy
50
of the home."
In subsequent cases, the Court regularly used Justice Douglas'
distinction. In Groh v. Ramirez,5 1 the Court struck down a house
search pursuant to a warrant because the warrant did not specify the
persons or things to be seized. 52 The government argued that the
search was reasonable. The government noted that the warrant application contained a very specific request to search for firearms, and the
application also contained a detailed affidavit that supported the application. In addition, federal agents conducted a narrow search consistent with the warrant application. 5 3 The Court concluded that
even though the federal agents "acted with restraint in conducting the
search,"5 4 the search was invalid because a magistrate did not set
those limits. 55 In reaching this result, the Court relied explicitly on
56
the need to interpose a magistrate between the police and citizens.
In Chimel v. California,5 7 the Court also cited the statement from
McDonald. In Chimel, the Justices held that a warrantless house
search conducted incident to an arrest violated the Fourth Amendment.58 In striking down the warrantless search, the Justices quoted
the McDonald passage regarding the need to interpose a magistrate
between citizens and law enforcement. 59
Justice Douglas' statement from McDonald contains one of the
most explicit comparisons between law enforcement officers and judicial officers, with law enforcement portrayed in a negative light. Justice Douglas wrote that law enforcement officers "acting on their own
cannot be trusted." Further, the highly suggestive language in Justice
49. McDonald v. United States, 335 U.S. 451, 455 (1948).
50. McDonald, 335 U.S. at 456.
51. 540 U.S. 551 (2004).
52. Groh v. Ramirez, 540 U.S. 551, 557-58 (2004). See also U.S. CONST. amend. IV
(courts only may issue warrants "particularly describing the place to be searched, and
the persons or things to be seized").
53. Groh, 540 U.S. at 554-55, 558.
54. Id. at 561.
55. Id. at 559-63.
56. Id. at 560.
57. 395 U.S. 752 (1969).
58. Chimel v. California, 395 U.S. 752, 768 (1969).
59. Chimel, 395 U.S. at 761.
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THE RHETORIC OF THE FOURTH AMENDMENT
1029
Douglas' passage cast police officers in a negative light. Acting on
their "desires," police officers may "violate" the privacy of the home.
But while the police act on the basis of "desires," the magistrate offers
"an objective mind." The magistrate protects "the privacy of the
home," which the police wish to "violate" to satisfy their "desires."
The Court has offered no support for this distinction between
magistrates acting objectively and police officers acting based on
desires. And, as discussed below, no support exists for these assumptions. 60 Instead, the distinction is based on nothing more than unsupported prejudice in favor of the judicial branch and against law
enforcement.
D.
THE "HURRIED JUDGMENT" OF LAW ENFORCEMENT OFFICERS.
In contrasting the objective, neutral magistrate with untrustworthy law enforcement officers, court opinions refer to the "hurried judgment" often exercised by an officer. As early as 1932, a Supreme
Court of the United States opinion asserted that "the informed and
deliberate determinations of magistrates empowered to issue warrants" are preferable "over the hurried action of officers and others
who may happen to make arrests." 6 1 More recently, in United States
v. Chadwick,6 2 the Court held that federal agents improperly opened a
footlocker at the federal building in Boston because the agents had not
obtained a warrant. Chief Justice Warren Burger's majority opinion
praised the "detached scrutiny of a neutral magistrate," which was
more reliable than the "hurried judgment of a law enforcement
63
officer."
The Court repeated its concern about the "hurried judgment of a
law enforcement officer" in Lo-Ji Sales, Inc. v. New York. 64 In Lo-Ji
Sales, the Court held that a search of an adult bookstore violated the
Fourth Amendment because a local judge was not sufficiently "neutral
65
and detached" to issue a valid warrant.
The Justices also cited worries about the "hurried judgment" of
law enforcement officers in support of the Court's good faith exception,
which permits introduction of evidence when an officer relies in good
faith on an invalid warrant. 66 According to the majority in United
60. See infra notes 73-155 and accompanying text.
61. U.S. v. Lefkowitz, 285 U.S. 452, 464 (1932).
62. 433 U.S. 1 (1977).
63. United States v. Chadwick, 433 U.S. 1, 9 (1977).
64. 442 U.S. 319 (1979).
65. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979).
66. The good faith exception was first recognized in UnitedStates v. Leon, 468 U.S.
897 (1984).
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[Vol. 43
States v. Leon,6 7 the protection offered by a good faith exception would
help convince law enforcement officers to obtain warrants - a desirable result given the Court's "strong preference for warrants." 68 And
this strong preference is appropriate because a neutral and detached
magistrate "is a more reliable safeguard against improper searches
69
than the hurried judgment of a law enforcement officer."
Admittedly, police officers sometimes must make very fast decisions. However, such searches typically fall within the Court's "exigent circumstances" exception and do not require a warrant. 70 Thus,
certain situations that require a "hurried judgment" allow officers to
proceed without a warrant.
When the Court has criticized the "hurried judgment" of law enforcement officers, the officers often had no reason to hurry. For example, consider Justice Burger's description of the footlocker search at
the federal office building in Chadwick: "Here the search was conducted more than an hour after federal agents had gained exclusive
control of the footlocker and long after respondents [the defendants]
were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency."7 1 The
search of the adult bookstore in Lo-Ji Sales also did not involve any
exigency.7 2 In short, the Justices have criticized the "hurried judgment" of law enforcement officers, without any facts suggesting that
the officers were actually in a hurry.
E.
SUMMARY.
Perhaps it should be unsurprising that the Justices serving on the
Supreme Court of the United States should applaud other judges who
issue warrants while denigrating law enforcement officers. Perhaps
the Court's attempt to create such stereotypes should be especially unsurprising, given how little historical authority exists for an activist
interpretation of the Fourth Amendment.
With that said, the Court's Fourth Amendment opinions treat
magistrates and law enforcement officers in strikingly different ways.
The Court refers to magistrates as "neutral," "impartial," "objective,"
67. 468 U.S. 897 (1984).
68. United States v. Leon, 468 U.S. 897, 914 (1984).
69. Leon, 468 U.S. at 914. See also California v. Acevedo, 500 U.S. 565, 588 n.2
(1991) (Stevens, J., dissenting) (stating a concern about the hurried judgment of law
enforcement officers).
70. See, e.g., Warden v. Hayden, 387 U.S. 294, 298-300 (1967) (finding exigent circumstances when officers pursued an armed robbery suspect to his home).
71. Chadwick, 433 U.S. at 1.
72. See Lo-Ji Sales, 442 U.S. at 329 (a store clerk was arrested before the search of
the adult bookstore began).
2010]
THE RHETORIC OF THE FOURTH AMENDMENT
1031
and "informed." At the same time, the Justices refer to law enforcement agents as "zealous" officers who demonstrate "hurried judgment"
through the exercise of their "unbridled discretion."
The next two sections of this Article review empirical data on how
magistrates and law enforcement officers perform their duties. These
studies do not demonstrate that law enforcement officers are superior
to magistrates. Both groups have a role to play. These sections conclude only that the bias demonstrated in the Court's Fourth Amendment opinions is not warranted.
THE REALITY OF JUDICIAL INVOLVEMENT: LIMITED
REVIEW AND EXPERIENCE.
III.
Supreme Court of the United States decisions tell a heroic story of
judicial involvement in Fourth Amendment 73 cases. According to this
story, through the warrant process, "detached" and "neutral" magistrates aggressively protect citizen rights against the "unbridled discretion" of "zealous" police officers. However, a review of how the
warrant process operates in practice tells a very different story.
Judicial involvement in warrant applications is profoundly restricted. Empirical studies show that reviewing magistrates receive
boilerplate warrant applications, which they approve very quickly. In
some instances, these "magistrates" have no legal training. Despite a
record that calls for oversight, appellate courts exercise a highly deferential review of magistrate decisions.
A.
LIMITED REVIEW OF WARRANT APPLICATIONS.
Contrary to Supreme Court of the United States rhetoric, magistrates often engage in a minimal review of warrant applications. In
1984, the National Center for State Courts documented this limited
review. 74 The center authored the most comprehensive study of the
warrant process to date. The study took place in seven cities located
75
throughout the United States.
73.
74.
U.S. CONST. amend.
1V.
RICHARD VAN DUIZEND, ET AL., THE SEARCH WARRANT PROCESS: PRECONCEPTIONS, PERCEPTIONS, PRACTICES (1985) [hereinafter VAN DUIZEND, THE SEARCH WARRANT
PROCESS].
75. Id. at 4-5. See also Paul Sutton, The FourthAmendment in Action: An Empirical Review of the Search Warrant Process, 22 CRIM. L. BULL. 405, 421 (1986) (Professor
Sutton was one of the professors who compiled the 1984 study. Professor Sutton concluded in a subsequent article that "critical portions of many affidavits were rendered in
'boilerplate' recitations of informant reliability, information trustworthiness, and probable cause to believe certain specific contraband was in the possession of the accused at
the place indicated.").
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CREIGHTON LAW REVIEW
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According to the study, magistrates often processed warrant applications with lightning speed, leaving no time for anything other
than the most cursory review. Magistrates spent an average of "two
minutes and forty eight seconds" on each warrant application. 76 The
median time spent on a warrant application was even shorter - "two
77
minutes and twelve seconds."
Although high quality warrant applications might justify a quick
review, the magistrates were not receiving high quality applications.
To the contrary, the 1984 study asserted that warrant applications
were "routinely reduced to boilerplate language." 78 Warrant application statements about confidential informants were particularly
troubling. Issuing magistrates were "asked to believe in the existence
and the truthfulness of persons whose identities and movements are
79
cloaked in standardized legalese."
The study concluded that, contrary to the exalted role described in
Supreme Court opinions, magistrates who issued warrants often did
little more than rubber stamp the warrant applications. Of the warrant hearings observed by the authors, only about eight percent resulted in the denial of the warrant application.8 0 The study also
noted: "Most police officers interviewed could not remember having a
81
search warrant turned down."
The study observed that when law enforcement officers seek a
8 2
warrant, the officers often shop for the least demanding magistrate.
Such magistrate shopping imposes a serious limitation on the warrant
process.8 3 If a particular magistrate approves warrant applications
after only a cursory review, law enforcement officers presumably
would seek out this magistrate. At the same time, the officers would
attempt to avoid more demanding magistrates.
Empirical work has documented the existence of such magistrate
shopping. For example, the 1984 study found that in one city, a particular magistrate would review fifty-three percent of the warrant ap76. VAN DUIZEND, THE SEARCH WARRANT PROCESS, supra note 74, at 26. See
Wayne LaFave, WarrantlessSearches and the Supreme Court:Further Ventures into the
Quagmire, 8 CRIM. L. BULL. 9, 27 (1972) (judges often sign warrants without carefully
reading the warrant application).
77. VAN DUIZEND, THE SEARCH WARRANT PROCESS, supra note 74, at 26.
78. Id. at 52.
79. Id.
80. Id. at 27.
81. Id.
82. See id. at 23-24.
83. See, e.g., Silas J. Wasserstrom, The Court's Turn Toward a General Reasonableness Interpretationof the FourthAmendment, 27 AM. CRIM.L. REV. 119, 135 (1989)
("Empirical studies suggest that in many jurisdictions magistrate shopping is widespread and that magistrates perform only a cursory review of the warrant
application.").
2010]
THE RHETORIC OF THE FOURTH AMENDMENT
1033
plications, while another magistrate would review only three percent
of these applications. 8 4 In another city, the magistrate who received
the most warrant applications "had rejected only one search warrant
85
application in more than a decade and a half as a judge."
Similarly, a 2000 study in San Diego found that although all warrants were issued by municipal court judges, "there was a significant
disparity among judges in the distribution of this workload."8 6 The
San Diego study noted that although twenty-four municipal court
judges could issue warrants in San Diego,8 7 "[s]ix judges issued almost three-fourths (73%) of all search warrants in our random sample."8 8 With respect to search warrants, the study also observed:
"Over one-third (38%) were issued by just three judges."8 9
Contrary to the rhetoric of Supreme Court opinions, the warrant
application process is characterized by magistrate shopping, boilerplate applications, and minimal magistrate review of warrant applications. 90 But because some "magistrates" have no legal training, this
rubber stamp process should be unsurprising.
B.
MAGISTRATE QUALIFICATIONS.
In response to the prior section, one might recommend a more demanding warrant process. In theory, the Supreme Court of the
United States could prohibit boilerplate warrant applications and rubber-stamp warrant hearings. Unfortunately, magistrates sometimes
lack even basic legal training. As a result, a more meaningful warrant
review process may be impossible.
Government employees need not have any legal training to issue
warrants. In Shadwick v. City of Tampa,9 1 the Supreme Court held
that municipal court clerks with no legal training could issue arrest
warrants. The Shadwick opinion noted: "Our legal system has long
entrusted nonlawyers to evaluate more complex and significant factual data than that in the case at hand" -with nonlawyers serving on
grand juries, as well as juries that hear criminal trials. 9 2 In light of
Shadwick, Professor Abraham Goldstein wrote that the "judicial of84. VAN
DUIZEND, THE SEARCH WARRANT PROCESS, supra note 74, at 24, Table 6.
85. Id. at 23-24.
86. Laurence A. Benner & Charles T. Samarkos, Searching for Narcotics in San
Diego: PreliminaryFindings from the San Diego Search WarrantProject, 36 CAL. W. L.
REV. 221, 226 (2000).
87. Id.
88. Id.
89. Id.
90. See Abraham S. Goldstein, The Search Warrant, The Magistrate,And Judicial
Review, 62 N.Y.U. L. REV. 1173, 1182 (1987).
91. 407 U.S. 345 (1972).
92. Shadwick v. City of Tampa, 407 U.S. 345, 351-52 (1972).
1034
CREIGHTON LAW REVIEW
[Vol. 43
ficer" who issues a warrant "need not be a judge at all; he need not be
93
law-trained; and he need serve only part-time."
The ability of nonlawyers to issue warrants was cited in Illinois v.
Gates,94 as a rationale for the Court's transition to a less technical and
more relaxed probable cause standard. In the majority opinion in
Gates, Chief Justice William Rehnquist noted: "[Slearch and arrest
warrants long have been issued by persons who are neither lawyers
nor judges, and who certainly do not remain abreast of each judicial
refinement of the nature of 'probable cause.' 9 5 As a result, a "complex
superstructure of evidentiary and analytical rules" for determining
probable cause could not "be reconciled with the fact that many warrants are ... issued on the basis of nontechnical common-sense judgments of laymen applying a standard less demanding than those used
96
in more formal legal proceedings."
The Gates Court referred to "common-sense judgments." But do
nonlawyer magistrates exercise independent judgment at all? For a
magistrate without legal training, a warrant application could be very
difficult to review. How would such a person even begin to evaluate
the application? To make the process even more intimidating, the
nonlawyer would receive the warrant application from a police officer,
and perhaps a prosecutor. Both of these applicants would be educated
in search and seizure law - education that the magistrate would lack.
In such circumstances, how could the nonlawyer magistrate reject the
application?
Where a magistrate with legal training considers the warrant application, that magistrate may be only marginally better prepared
than the non-lawyer magistrate. While some trial judges receive their
training as criminal trial lawyers, many do not practice criminal law.
A judge whose legal training came in an estate planning or tax practice may have limited knowledge of search and seizure law. 9 7 If a
judge does not understand the contents of a warrant application, the
easiest course is to simply approve the application with limited review. Perhaps not remarkably, the San Diego warrant study found
that the "one judge who ranked second highest in issuing narcotics
search warrants had no apparent prior criminal court experience, ei98
ther as a prosecutor or a defense counsel."
93. Goldstein, supra note 90, at 1183.
94. 462 U.S. 213 (1983).
95. Illinois v. Gates, 462 U.S. 213, 235 (1983).
96. Gates, 462 U.S. at 236.
97. See, e.g., SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN 348-50, Table 9.1 (Yale Univ. 1997) (observing
that federal court judicial appointments had come from a variety of legal careers, including government lawyers, law firms, and solo practices).
98. Benner & Samarkos, supra note 86, at 228.
2010]
C.
THE RHETORIC OF THE FOURTH AMENDMENT
1035
REVIEW ON APPEAL.
Given the magistrates' cursory review of warrant applications
and the prevalence of magistrate shopping, one might expect aggressive appellate review of warrants. In fact, appellate review is trending
in the opposite direction. If anything, modern Fourth Amendment decisions have made appellate review of warrants less demanding and
more deferential.
In Illinois v. Gates,99 the Supreme Court of the United States described probable cause as "a fluid concept - turning on the assessment
of probabilities in particular factual contexts - not readily, or even
usefully, reduced to a neat set of legal rules." 10 0 Prior to Gates, magistrates had determined whether informant testimony amounted to
probable cause by assessing the "basis of knowledge" and the "veracity" (or "reliability") of informant testimony. 10 1
The Gates decision replaced this relatively specific two-part test
10 2
with a more nebulous "totality of the circumstances analysis."
Gates is quite vague as to the contours of this new probable cause approach. 10 3 However, the Court clearly sought to liberalize the probable cause standard, which would insulate probable cause
determinations from searching appellate review. 10 4 Quoting a prior
decision in Spinelli v. United States, 10 5 the Gates majority wrote that
a magistrate's "determination of probable cause should be paid great
10 6
deference by reviewing courts.'
Gates has received considerable criticism. Justice William J.
Brennan's dissenting opinion complained that the Gates majority had
demonstrated "an overly permissive attitude towards police practices
in derogation of the rights secured by the [Constitution] .,107 One critique of the Gates decision concluded that "the totality standard articulated in Gates is so vague and flexible, and the standard of review
99. 462 U.S. 213 (1983).
100. Illinois v. Gates, 462 U.S. 213, 232 (1983).
101. See Spinelli v. United States, 393 U.S. 410, 413-16 (1969); Aguilar v. Texas, 378
U.S. 108, 114-15 (1964).
102. Gates, 462 U.S. at 238.
103. See, e.g., id. at 291 (Brennan, J., dissenting) (the Gates result "imposes no
structure on magistrates' probable cause inquiries"); WAYNE R. LAFAVE & JEROLD H.
ISRAEL, CRIMINAL PROCEDURE § 3.3, at 143-45 (2d ed. 1992) (asserting that the totality of
the circumstances test does not provide a clear framework for assessing probable cause).
104. For criticisms of how the Gates standard effects appellate review, see Yale
Kamisar, Gates, "ProbableCause," "Good Faith,"and Beyond, 69 IowA L. REV. 551, 571
(1984); Edward G. Mascolo, Probable Cause Revisited: Some Disturbing Implications
Emanatingfrom Illinois v. Gates, 6 W. NEW ENG. L. REV. 331 (1983).
105. 393 U.S. 410 (1969).
106. Gates, 462 U.S. at 236. Accord Spinelli v. United States, 393 U.S. 410, 419
(1969).
107. Gates, 462 U.S. at 290.
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CREIGHTON LAW REVIEW
[Vol. 43
so deferential, that it seems virtually impossible to challenge the finding of probable cause, unless there is a bare bones affidavit in a warrant application."1 0 8
In United States v. Leon, 10 9 the Court issued a second important
decision that limited appellate review of warrants. The Leon Court
held that where a law enforcement officer acts in "reasonable reliance
on a search warrant issued by a detached and neutral magistrate but
ultimately found to be unsupported by probable cause," evidence obtained pursuant to the defective warrant may be introduced at
trial. 1 0° As Justice Stevens noted in dissent, in cases where this
"'good faith' exception to the exclusionary rule would operate, there
111
will also be immunity from civil damages."
Leon imposed considerable limits on review of warrants. Even
where probable cause fails the liberalized Gates standard, evidence
will be admitted and damages suits barred as long as officers engaged
in "reasonable reliance" on a search warrant.11 2 As a result, litigants
rarely will have an incentive to litigate the validity of a warrant and
the existence of probable cause. 113 As Justice Brennan recognized in
his Leon dissent: "A chief consequence of today's decision will be to
convey a clear and unambiguous message to magistrates that their
decisions to issue warrants are now insulated from subsequent judicial review."1 14 In short, warrant applications are unlikely to receive
significant review - either by the magistrate who issues warrants or
by an appellate court.
108. Gerald G. Ashdown, The Blueing of America: The Bridge Between the War on
Drugs and the War on Terrorism, 67 U. PiTT. L. REV. 753, 759 (2006).
109. 468 U.S. 897 (1984).
110. See United States v. Leon, 468 U.S. 897, 900, 913 (1984).
111. Leon, 468 U.S. at 977 n.35.
112. See Silas Wasserstrom & William J. Mertens, The Exclusionary Rule on the
Scaffold: But Was it a Fair Trial?, 22 AM. CRIM. L. REV.85, 122 (1984) ("the Court has
landed a combination punch: in Gates, it lowered the standard for issuing a warrant;
then, in Leon, it ruled that where a warrant is invalid even under this relaxed standard,
the evidence seized pursuant to the warrant is nevertheless admissible under the good
faith exception to the exclusionary rule").
113. In his Leon majority opinion, Justice White rejected the argument that the
good faith exception would discourage Fourth Amendment suppression motions, because "the magnitude of the benefit conferred on defendants by a successful motion
makes it unlikely that litigation of colorable claims will be substantially diminished."
Leon, 468 U.S. at 924 n.25. But cf. Robert M. Bloom, U.S. v. Leon and Its Ramifications,
56 U. COLO. L. REV.247, 263 (1985) (the result in Leon, "in conjunction with the Gates
decision, will substantially limit appellate review of magistrates' probable cause determinations"); Joan Greenberg Levenson, Case Comment, The Good Faith Exception:
Should It Enable Courts To Avoid Explication of Underlying Fourth Amendment Issues?, 52 BROOK. L. REV. 799, 802, 827 (1986) (predicting that after Leon, there will be
an appellate court "failure to determine the existence of probable cause ...
114. Leon, 468 U.S. at 956 (Brennan, J., dissenting).
2010]
D.
THE RHETORIC OF THE FOURTHAMENDMENT
1037
SUMMARY.
While the rhetoric of the Supreme Court of the United States emphasizes the role of neutral magistrates and warrants in protecting
individual rights, the reality of Fourth Amendment practice is quite
different. Magistrates often issue warrants quickly on the basis of
boilerplate language. Some of these magistrates lack the training and
experience to engage in a more demanding inquiry." 5 At most, appellate courts conduct a limited and highly deferential review of
warrants.
Despite these limitations, the San Diego warrant study found
that search warrants offered "an efficient, streamlined process which,
when successful in recovering narcotics, resulted in swift conviction of
narcotics traffickers with a minimum expenditure of judicial resources." 116 Study authors Laurence A. Benner and Charles T.
Samarkos reached this conclusion despite open recognition of magistrate shopping, as well as an "increasing use of boilerplate in
7
affidavits.""
Ultimately, the conclusions of Benner and Samarkos are not inconsistent with the thesis of this Article. This Article does not attempt to establish that the warrant process is useless. Rather, this
Article asserts that the Court lacks support for its rhetoric favoring
judicial magistrates over law enforcement officers.
Even including the results of the San Diego study, the Supreme
Court's rhetoric about the protection offered by a "neutral and detached" magistrate is misleading. The next section demonstrates that
the Court's negative rhetoric about law enforcement is equally
misleading.
IV.
THE RISE OF POLICE PROFESSIONALISM.
The rise of professional police departments - with internal controls designed to prevent constitutional violations - is a very important recent law enforcement development. With the rise of police
professionalism, the statements by the Supreme Court of the United
States about "zealous" law enforcement officers acting on "unbridled
discretion" are increasingly outmoded and inaccurate. While most Supreme Court opinions continue to emphasize police incompetence, a
115. As noted above, the San Diego warrant study found magistrate shopping for
warrant applications, as well as the "use of boilerplate in affidavits." Benner &
Samarkos, supra note 86, at 265-66.
116. Id. at 264.
117. Id. at 265.
1038
CREIGHTON LAW REVIEW
[Vol. 43
few Fourth Amendment" opinions have begun to recognize the increasing professionalism of law enforcement.
Unfortunately, discussions of law enforcement professionalism
have become intertwined with the exclusionary rule. The exclusionary rule bars "the use of evidence secured through an illegal search or
seizure." 119 In the Court's most explicit statement to date, a majority
opinion by Justice Antonin Scalia cited increased police professionalism as a basis for limiting the exclusionary rule. 120 In response, a
number of commentators asserted that increased police professionalism has occurred because of the exclusionary rule, and this development weighs in favor of retaining the rule. 12 1 But this dispute
obscures an important point of consensus. Whatever the reasons, police departments have become more professional.
Law enforcement officers are not perfect. In a 1987 study, Myron
Orfield reported that "twenty-one of the twenty-two officers responding admitted in one way or another that officers do lie or 'shade the
facts' in court in order to establish probable cause."1 22 However, even
accepting some negatives, law enforcement officers are far more competent and trustworthy than the Court's categorically negative rhetoric would suggest.
A.
POLICE TRAINING.
In the 1961 decision in Mapp v. Ohio,1 23 the Supreme Court of the
United States held that the exclusionary rule applied to state court
proceedings. 124 At about this time, law enforcement officers began to
receive much improved training on search and seizure law. 12 5 As
118. U.S. CONST. amend. IV.
119. Wolf v. Colorado, 338 U.S. 25, 28 (1949).
120. Hudson v. Michigan, 547 U.S. 586, 598 (2006).
121. See Myron W. Orfield, Jr., Deterrence, Perjury, and the HeaterFactor:An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 84 (1992) (according to people who work in police departments and courts, "the exclusionary rule,
although imperfect . . . clearly leads to increased police professionalism and greater
observance of the law of the Fourth Amendment"); Yale Kamisar, In Defense of the
Search and Seizure Exclusionary Rule, 26 HARv. J. L. & PUB. POL'Y 119, 123-26 (2003)
(describing improved police training that resulted from adoption of the exclusionary
rule).
122. Myron W. Orfield, Jr., Comment, The Exclusionary Rule and Deterrence: An
Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016, 1050 n.130
(1987).
123. 367 U.S. 643 (1961).
124. Mapp v. Ohio, 367 U.S. 643, 654 (1961).
125. A number of authors have discussed improved police training after Mapp v.
Ohio. See, e.g., United States v. Leon, 468 U.S. 897, 954 n.13 (1984) (Brennan, J., dissenting) (the Mapp decision prompted "prosecutors and police commanders to work towards educating rank-and-file officers"); William C. Heffernan & Richard W. Lovely,
Evaluating the FourthAmendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. MICH. J. L. REFORM 311, 337-38 (1991) (Mapp led to an expan-
2010]
THE RHETORIC OF THE FOURTHAMENDMENT
1039
noted above, authors disagree on whether this improved training resulted from the exclusionary rule or from some other factor. 126 However, no one disputes that today police officers receive relatively
extensive training on search and seizure law.
In a 1987 law review piece, Myron Orfield surveyed twenty-six
Chicago narcotics officers regarding their knowledge of Fourth
Amendment law. 12 7 Orfield noted that "beginning in the early 1960s,
the Chicago Police Training Academy substantially increased the time
and effort devoted to training in search procedures for police recruits,
a pattern of improvement that continues to this day." 128 In addition
to these initial training sessions, the police department instituted "'inseizure
service training' designed to deal with particular search and
1 29
job."
the
on
faced
units
various
the
in
officers
that
problems
Two larger studies attempting to assess police officer knowledge
of Fourth Amendment law followed Orfield's piece. In 1991, Professors William Heffernan and Richard Lovely surveyed a larger group of
police officers regarding their knowledge of the Fourth Amendment. 130 The authors received responses from 547 police officers 13 1 in
four police departments located throughout the northeastern United
132
States.
In determining the officers' knowledge of Fourth Amendment law,
"the most significant relationship was that between in-service training and knowledge of the law."1 3 3 Heffernan and Lovely expressed
reservations that "even the most knowledgeable officers and lawyers
make a substantial number of mistakes in dealing with the rules of
search and seizure." 134 Nonetheless, Heffernan and Lovely found an
encouraging conclusion - with extensive in-service training "officers
acquire a degree of knowledge that approaches that of lawyers .. "135
Noting that Mapp v. Ohio, 1 3 6 led to an increase in such police training, the authors concluded that "the trend that began with Mapp has
sion in police training programs - an expansion that may have influenced police
attitudes toward the law as well as knowledge of it"); Michael Murphy, JudicialReview
of Police Methods in Law Enforcement: The Problem of Compliance by Police Departments, 44 TEX. L. REV. 939, 941-42 (1966); Yale Kamisar, Is the Exclusionary Rule an
'Illogical' or 'Unnatural'Interpretationof the Fourth Amendment?, 62 JUDICATURE 66,
69-73 (1978).
126. See supra notes 119-121 and accompanying text.
127. Orfield, supra note 122, at 1025 n.44.
128. Id. at 1028.
129. Id.
130. Heffernan & Lovely, supra note 125, at 330-31.
131. Id. at 331 (describing the police officers interviewed).
132. Id. at 330-31 (describing the police departments).
133. Id. at 337.
134. Id. at 338.
135. Id.
136. 367 U.S. 643 (1961).
1040
CREIGHTON LAW REVIEW
[Vol. 43
been a beneficial one; in-service training in criminal procedure has
been critical in enhancing police knowledge of the rules of search and
13 7
seizure."
A major Fourth Amendment study undertaken by L. Timothy
Perrin and other professors reached a similar result. 138 The Perrin
study surveyed over 400 law enforcement officers in Ventura County,
California. After compiling the officers' responses to a number of
Fourth Amendment hypotheticals, the study compared those responses with results from eighty first-year students at Pepperdine
Law School. 13 9 Like the Heffernan and Lovely study, the Perrin survey also found that continuing legal education was very important for
the law enforcement officers. In the Perrin survey, the officers who
recently had participated in a continuing education seminar on search
and seizure law "performed better than any other group in answering
the search and seizure hypotheticals.' u 40 The survey concluded: "The
more hours of academy training in search and seizure reported by the
officer, the better the officer performed on the [search and seizure]
hypotheticals ."141
The empirical results do not support the Supreme Court's rhetoric, which describes law enforcement officers as incompetent or dangerous. 14 2 According to the empirical studies, an officer who receives
regular continuing education will understand search and seizure law
as well as a typical attorney. Where a magistrate without legal training receives a warrant application, the officer presenting the application should understand search and seizure law better than the
supposedly superior magistrate. Even in the more common cases
where the magistrate is a member of the bar, the surveys do not support the Court's favoritism for magistrates over law enforcement
officers.
137. Heffernan & Lovely, supra note 125, at 338.
138. L. Timothy Perrin, H. Mitchell Caldwell, Carol A. Chase & Ronald W. Fagan, If
It's Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IowA L. REV. 669, 738
(1998).
139. Id. at 713.
140. Id. at 731.
141. Id.
142. For other discussions of officer training in modern police departments, see, e.g.,
SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUS-
TICE, 1950-1990, 51 (Oxford Univ. Press 1993) (noting "wide-ranging reforms in the education, training, and supervision of police officers"); William J. Stuntz, Warrants and
FourthAmendment Remedies, 77 VA. L. REV. 881, 896 (1991) (law enforcement officers
receive Fourth Amendment training "at the time they join the force," as well as further
training through on-the-job-experience).
2010]
B.
THE RHETORIC OF THE FOURTH AMENDMENT
1041
POLICE RESTRAINT AND DISCIPLINE.
For police training to matter, the training must affect law enforcement behavior. Most empirical studies focus on how much search and
seizure legal training police officers have received without assessing
how this training affects police behavior. However, studies do indicate
that law enforcement officers are increasingly sensitive to Fourth
Amendment requirements.
In the William C. Heffernan & Richard W. Lovely survey, the authors reached somewhat inconsistent conclusions about the willingness of police officers to comply with the Fourth Amendment.
Discussing the exclusionary rule, Heffernan and Lovely observed that
officers have "a day-to-day reminder of the importance of adherence to
the law."1 43 The authors continued: "Whenever an officer carries out
an intrusion, he can expect questions from a prosecutor when the case
reaches the intake stage, and questions from a defense attorney if it is
forwarded for trial. Such questions generate considerable pressure to
1 44
comply with the law."
However, the authors also found that in fifteen percent of the
study responses, "officers noted that intrusion was prohibited in a
given setting, but stated that they would nonetheless intrude in that
setting. 1 4 5 The authors noted: "The fact that nearly a sixth of all responses indicated a deliberate disregard of the law must be a matter
1 46
of concern.
The study by L. Timothy Perrin and other Pepperdine University
professors was more ambivalent about police officer compliance with
the Fourth Amendment. With respect to searches and seizures,
nearly sixty percent of the officers surveyed "considered suppression
to be an important concern." 14 7 But in search and seizure cases, more
than eighteen percent of the officers surveyed indicated that exclusion
of evidence was "only a minor concern or no concern at all.' 48 Further, where evidence was suppressed, "[flewer than 30% of the officers
learned of the judge's ruling from the prosecutor or their supervisor."u 4 9 This lack of communication suggests that law enforcement
departments may not take Fourth Amendment violations seriously.
Ultimately, the authors concluded that the exclusionary rule has
u5 0
failed "to effectively deter police misconduct.'
143.
144.
145.
146.
147.
148.
149.
150.
Heffernan and Lovely, supra note 125, at 351.
Id.
Id. at 348.
Id.
Perrin, supra note 138, at 720.
Id.
Id. at 723-24.
Id. at 734.
1042
CREIGHTON LAW REVIEW
[Vol. 43
In his study of Chicago narcotics officers, Myron Orfield presented
a considerably more optimistic picture of law enforcement behavior. 15 1 Notably, Orfield's work is the only significant recent study that
directly assessed a police department's response to Fourth Amendment errors and suppression of evidence. 15 2 Orfield noted that "as a
general rule in the Narcotics Section, two suppressions in other than
minor cases cause an officer's transfer or demotion." 15 3 Even in minor
cases, frequent search or seizure mistakes "may affect the officers'
154
prospects for promotion."
In addition, Orfield concluded that if courts repeatedly suppressed evidence obtained by an officer, these rulings would damage
the officer's relationships with both superiors and peers. Orfield observed: "The most common responses indicate that an officer's pattern
of suppression would engender a reputation for laziness, incompe155
tence, or dishonesty."
If a law enforcement officer violates the Fourth Amendment,
should the officer fear disciplinary action? This question deserves
more study. With that said, the available evidence suggests that an
increasing number of law enforcement officers and departments take
the amendment seriously.
V.
THE EMERGING NEW RHETORIC OF POLICE
RESPONSIBILITY.
Recently, new language in Supreme Court of the United States
opinions has begun to portray modern law enforcement in a more
favorable light. Most opinions still use the traditional language, referring to law enforcement agents as "zealous officers" who must be controlled by a "neutral magistrate." As already noted, the recent opinion
in Arizona v. Gant' 5 6 used traditional rhetoric, with the Court expressing concerns about officers' "unbridled discretion."1 5 7 Nonetheless, a
few opinions have used very different language to describe how law
enforcement officers approach the Fourth Amendment.
151. Orfield, supra note 122, at 1055.
152. Id, at 1046-49.
153. Id. at 1046.
154. Id. at 1047.
155. Id. at 1048.
156. 129 S. Ct. 1710 (2009).
157. Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009).
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THE RHETORIC OF THE FOURTH AMENDMENT
1043
By far the most atypical - and controversial - rhetoric appeared
in Hudson v. Michigan.15 s In Hudson, the Court concluded that the
15 9
exclusionary rule did not apply to "knock and announce" violations.
In declining to apply the exclusionary rule, Justice Antonin
Scalia's Hudson majority opinion noted: "Another development over
the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline." 160 Justice Scalia continued, stating that
numerous sources were "now available to teach officers and their su16 1
Juspervisors what is required of them under this Court's cases."
staffed
are
forces
police
modern
tice Scalia also observed: "Moreover,
with professionals; it is not credible to assert that internal discipline,
1 62
which can limit successful careers, will not have a deterrent effect."
After Hudson concluded that the exclusionary rule was inapplicable in "knock and announce" cases, some authors responded to Justice
Scalia's majority opinion with harsh criticism. In response to the "increasing professionalism" described by Justice Scalia, critics asserted
that this change occurred only because the exclusionary rule had
forced police departments to take the Fourth Amendment seri63
Justice Scalia was also criticized by criminologist Samuel
ously.1
Walker, whose work Justice Scalia had cited in Hudson.16 4 But regardless of whether the Hudson Court reached the correct result, the
Court's rhetoric about police officer responsibility was remarkably different from most prior opinions.
While the Hudson opinion is the most explicit recognition of developing police professionalism, other cases have more tentatively
adopted this new Fourth Amendment rhetoric. In United States v.
Leon, 16 5 the majority opinion included a widely discussed footnote
158. 547 U.S. 586 (2006).
159. See Hudson v. Michigan, 547 U.S. 586, 594 (2006) ("Since the interests that
were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.").
160. Hudson, 547 U.S. at 598.
161. Id. at 599.
162. Id.
163. See, e.g., Chris Blair, Hudson v. Michigan: The Supreme Court Knocks and Announces the Demise of the Exclusionary Rule, 42 TULSA L. REV. 751, 759 (2007)
("[W]ithout a suppression sanction, the police and prosecutors had simply been ignoring
the requirements of the Fourth Amendment."); George M. Dery, III, A False Mirror:
Hudson v. Michigan's Distortionof The Exclusionary Rule In Knock-and-Announce Litigation, 76 UMKC L. REV. 67, 95 (2007) ("[A]ny increase in police professionalism could
indeed be due to the deterrent effect of a half-century's application of the exclusionary
rule.").
164. See Samuel Walker, Scalia Twisted My Words, L.A. TIMES, June 25, 2006, at 5,
available at http://msll.mit.edu/furdlog/docs/latimes/2006-06-25_latimesscalia_2ndguess.pdf.
165. 468 U.S. 897 (1984).
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about police professionalism. 16 6 Leon held that the exclusionary rule
did not apply to "evidence obtained in objectively reasonable reliance
on a subsequently invalidated search warrant" 16 7 - the "good faith"
exception. 16 8 As in Hudson, Leon received harsh criticism for the
169
Court's exclusionary rule exception.
Nonetheless, the Leon decision includes an important rhetorical
shift. Footnote twenty of Justice Byron White's Leon majority opinion
extensively quotes an article written by Professor Jerold Israel. 1 70 In
the passage quoted by Justice White, Professor Israel wrote that the
exclusionary rule remained important because of "the impetus it has
provided to police training programs that make officers aware of the
limits imposed by the fourth amendment and emphasize the need to
operate within those limits." 17 1 Further, according to Professor
Israel's passage quoted in footnote twenty, a good faith exception "is
not likely to result in the elimination of such programs, which are now
viewed as an important aspect of police professionalism."' 7 2
Outside of the exclusionary rule cases, officer training and experience sometimes has received discussion in "stop and frisk" cases brief warrantless stops that occur in a public place. In Terry v.
Ohio,173 the Justices held that a "stop and frisk" did not violate the
Fourth Amendment. The Terry majority emphasized that the stop
had been made by a detective with thirty-five years of experience, who
had patrolled the neighborhood for thirty years. 17 4 At the same time,
the Terry opinion also voiced the traditional Court mistrust of police
officers. According to Chief Justice Earl Warren's majority opinion,
officers typically should "be subjected to the more detached, neutral
1 75
scrutiny of a judge."
In more recent cases involving brief warrantless stops, the Justices sometimes have emphasized the training and experience of law
enforcement officers. In Florida v. Rodriguez,176 the Court upheld a
166. United States v. Leon, 468 U.S. 897, 919 n.20 (1984).
167. Leon, 468 U.S. at 922.
168. See, e.g., Groh v. Ramirez, 540 U.S. 551, 565 n.8 (2004).
169. See, e.g., Wayne R. LaFave, "The Seductive Call of Expediency" United States
v. Leon, Its Rationale and Ramifications, 1984 U. ILL. L. REV. 895, 901-11; Mertens &
Wasserstrom, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 AM.
CRIM. L. REV. 85, 93 (1984) (in Leon and other recent cases, the Court permitted "admission of illegally obtained evidence under circumstances which plainly add to police incentives to violate the law").
170. Jerold H. Israel, CriminalProcedure, the Burger Court, and the Legacy of the
Warren Court, 75 MICH. L. REV. 1319, 1412 (1977).
171. Id. at 1412-13 (quoted in Leon, 468 U.S. at 919 n.20).
172. Id.
173. 392 U.S. 1 (1968).
174. Terry v. Ohio, 392 U.S. 1, 5 (1968).
175. Terry, 392 U.S. at 21.
176. 469 U.S. 1 (1984).
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THE RHETORIC OF THE FOURTH AMENDMENT
1045
stop and a search at Miami International Airport. In Rodriguez, the
majority opinion mentioned the training of the first officer to confront
the defendant. The majority acknowledged that the officer "had received about 40 hours of narcotics training in the police academy," in
addition to "a 5-week course from the Organized Crime Bureau, which
included one-and-one-half to two weeks of training in narcotic surveillance and drug identification." 17 7 The officer had received additional
178
training from the Drug Enforcement Administration.
In United States v. Mendenhall,179 Justice Lewis Powell's concurring opinion placed considerable emphasis on the importance of police
training. In Mendenhall, the Court upheld a stop and a search of an
airplane passenger at Detroit Metropolitan Airport. In approving this
stop, Justice Powell noted that the officer who first stopped and questioned the defendant had "10 years of experience and special training
in drug enforcement."' 8 0 Justice Powell concluded that in assessing
Fourth Amendment reasonableness, "courts need not ignore the considerable expertise that law enforcement officials have gained from
their special training and experience."' s '
Under Justice Powell's analysis, a department's commitment to
Fourth Amendment compliance could represent an important factor in
search and seizure analysis. Courts could consider whether a department endorsed pervasive Fourth Amendment training and whether
that department communicated with officers who violated the amendment. Such efforts to achieve Fourth Amendment compliance could
support a waiver of the exclusionary rule, and the introduction of evidence. Under such an approach, police departments would have a
strong incentive to endorse Fourth Amendment training and
discipline.
In cases like Hudson, Leon, Rodriguez, and Mendenhall, the
Court's more positive view of law enforcement represents an important development in Fourth Amendment rhetoric. Nonetheless, these
cases represent small islands in a sea of negative language. In most
Fourth Amendment decisions, the Court continues to portray law enforcement officers as untrustworthy and incompetent agents, who
need constant oversight by superior judicial magistrates.
177.
178.
179.
180.
181.
Florida v. Rodriguez 469 U.S. 1, 3 (1984) (per curiam).
Rodriguez, 469 U.S. at 3.
446 U.S. 544 (1980).
United States v. Mendenhall, 446 U.S. 544, 564 (Powell, J., concurring).
Mendenhall, 446 U.S. at 566.
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CONCLUSION
History provides little authority for Fourth Amendment 182 judicial activism. To authorize such intervention, the Supreme Court of
the United States has resorted to rhetoric. The Justices characterize
law enforcement agents as "zealous officers" who make "hurried judgments" on the basis of their "unbridled discretion." The Court contrasts these officers with "neutral," "detached," and "deliberate"
magistrates -judicial officers who are "interposed" between the citizen and the police so that irresponsible police officers cannot violate
individual rights. The Court recently relied on this rhetoric again in
Arizona v. Gant.l8 3 The Gant majority worried that police officers
might employ "unbridled discretion to rummage at will among a peru8 4
son's private effects.'
Empirical studies indicate that the Supreme Court's Fourth
Amendment rhetoric is seriously misleading - both with respect to law
enforcement officers and magistrates. The Court has praised the "deliberate" review offered by magistrates. But in reality, this "review"
often amounts to nothing more than a rubber stamp. Magistrates issue warrants based on boilerplate applications, approved after less
than five minutes. Under the highly deferential standard established
by the Supreme Court, appellate review of these warrant decisions is
virtually non-existent. Moreover, more aggressive appellate review
might not improve magistrate decision making, because some magistrates have no legal training.
While the Court's rhetoric is naively positive with respect to magistrates, the rhetoric is too cynical with respect to law enforcement
officers. Originating more than fifty years ago, this language fails to
recognize that today, an increasing number of law enforcement departments take the Fourth Amendment seriously. These departments
have made commitments to training officers about Fourth Amendment law, as well as disciplining officers who fail to comply with the
amendment.
A few Fourth Amendment opinions have begun to take notice of
the increasing professionalism in police departments - although this
change in rhetoric has received mixed reviews. In Hudson v. Michigan,185 Justice Antonin Scalia's recognition of the "increasing professionalism of police forces" is particularly noteworthy.' 8 6 Also, in his
182.
183.
184.
185.
186.
U.S. CONST. amend. IV.
129 S. Ct. 1710 (2009).
Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009).
547 U.S. 586 (2006).
Hudson v. Michigan, 547 U.S. 586, 598 (2006).
2010]
THE RHETORIC OF THE FOURTHAMENDMENT
1047
United States v. Mendenhal118 7 concurrence, Justice Lewis Powell
suggested that courts "need not ignore the considerable expertise that
law enforcement officials have gained from their special training and
88
experience."'
Sadly, most Fourth Amendment decisions have ignored these developments, relying instead on outdated rhetoric about renegade police officers. But with recent decisions like Hudson, the Supreme
Court has a new opportunity to mend the rift with law enforcement.
Ultimately, law enforcement officers and judicial officers have the
same duty - to uphold the rule of law.
187.
188.
446 U.S. 544 (1980).
United States v. Mendenhall, 446 U.S. 544, 566 (1980) (Powell, J., concurring).
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