Posted by Eugene Volokh:
Crime Severity and Constitutional Line-Drawing:
http://volokh.com/archives/archive_2009_06_21-2009_06_27.shtml#1246021982
Justice Thomas's partial dissent in yesterday's [1]school
near-strip-search case contains this paragraph:
The majority�s decision in this regard also departs from another
basic principle of the Fourth Amendment: that law enforcement
officials can enforce with the same vigor all rules and regulations
irrespective of the perceived importance of any of those rules. �In
a long line of cases, we have said that when an officer has
probable cause to believe a person committed even a minor crime in
his presence, the balancing of private and public interests is not
in doubt. The arrest is constitutionally reasonable.� Virginia v.
Moore, 553 U. S. ___, ___ (2008) (slip op., at 6). The Fourth
Amendment rule for searches is the same: Police officers are
entitled to search regardless of the perceived triviality of the
underlying law. As we have explained, requiring police to make
�sensitive, case-by-case determinations of government need,�
Atwater v. Lago Vista, 532 U. S. 318, 347 (2001), for a particular
prohibition before conducting a search would �place police in an
almost impossible spot,� id., at 350.
I often like much of Justice Thomas's work, but here it seems that he
errs.
The notion that judges shouldn't evaluate the supposed severity of
various crimes in applying constitutional tests is plausible. In fact,
as I discuss in [2]Crime Severity and Constitutional Line-Drawing, 90
Va. L. Rev. 1957 (2004), the Court has indeed sometimes endorsed this
notion, including in the Fourth Amendment area. In Mincey v. Arizona
(1978), for instance, the Court declined to create a �murder scene�
exception to the Fourth Amendment warrant requirement, reasoning that
courts had no manageable standards for drawing a line between murders
and other crimes:
[T]he public interest in the investigation of other serious crimes
is comparable. If the warrantless search of a homicide scene is
reasonable, why not the warrantless search of the scene of a rape,
a robbery, or a burglary? �No consideration relevant to the Fourth
Amendment suggests any point of rational limitation� of such a
doctrine.
Likewise, in New Jersey v. T.L.O. (1985), the Court allowed searches
of public school students based merely on reasonable suspicion, and
refused to limit such a doctrine to searches for evidence of serious
offenses:
We are unwilling to adopt a standard under which the legality of a
search is dependent upon a judge�s evaluation of the relative
importance of various school rules .... The promulgation of a rule
forbidding specified conduct presumably reflects a judgment on the
part of school officials that such conduct is destructive of school
order or of a proper educational environment. Absent any suggestion
that the rule violates some substantive constitutional guarantee,
the courts should, as a general matter, defer to that judgment and
refrain from attempting to distinguish between rules that are
important to the preservation of order in the schools and rules
that are not.
But other cases have disagreed. Tennessee v. Garner (1983) held that
the Fourth Amendment generally bars the police from shooting at a
fleeing felon unless �the suspect threatens the officer with a weapon
or there is probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious physical
harm.� Though �burglary is a serious crime,� the Court concluded, �it
is [not] so dangerous as automatically to justify the use of deadly
force,� because it is �a �property� rather than a �violent� crime.�
Likewise, in Welsh v. Wisconsin (1984), the Court held that a
warrantless home arrest couldn�t be justified by the Fourth
Amendment�s exigent circumstances exception when the person was being
arrested for a nonjailable misdemeanor. The misdemeanor was drunk
driving, which at least one member of the majority thought was very
dangerous. Still, the Court concluded that Wisconsin�s classification
of the misdemeanor as a nonjailable offense was �the best indication
of the State�s interest in precipitating an arrest, and is one that
can be easily identified both by the courts and by officers faced with
a decision to arrest.�
The school search cases are often seen as part of the Court's �special
needs� jurisprudence, in which the usual
probable-cause-and-something-warrant
The Court�s Fourth Amendment �special needs� cases at times stress the
harmfulness of the conduct that the search or seizure is trying to
uncover. See, e.g., Mich. Dep�t of State Police v. Sitz (1990)
(stressing, in upholding checkpoints aimed at catching and deterring
drunk drivers, �the magnitude of the drunken driving problem� and �the
States� interest in eradicating it�); Skinner v. Ry. Labor Executives�
Ass�n (stressing the �compelling Government interests served by� a
drug and alcohol testing program for railway employees involved in
certain train accidents). It�s not clear, though, how significant a
role this factor plays, or when the Court would conclude that the need
is not great enough. In Delaware v. Prouse (1979), for instance, the
Court suggested that checkpoints might be permitted even to check to
make sure people aren�t driving without a license or a registration.
Conversely, in City of Indianapolis v. Edmond (2000), and Ferguson v.
City of Charleston (2001), the Court struck down drug checkpoints and
the testing of obstetrics patients for drugs, because these programs
were aimed at advancing �the general interest in crime control,� even
though the crime that they were trying to control was quite serious,
likely as serious as drunk driving. The Court�s special needs cases
today thus seem focused primarily on whether the searches and seizures
are aimed at some interest other than uncovering crimes (as opposed to
trying to catch a specific criminal), on how intrusive they are, and
on how much discretion they leave to the police. Nonetheless, while
the seriousness of the crime being detected or deterred seems to be
less significant, some still valid precedents do rely on the premise
that certain searches are justified precisely by the seriousness of
the crime involved.
To be sure, requiring government officials to make case-by-case
evaluations of crime severity based on the specific facts of each case
might well make the rule too unpredictable (though, in a related area,
case-by-case evaluations of probable cause based on the specific facts
of each case are precisely what Fourth Amendment law often requires).
But some sort of evaluation based at least on the type of crime
involved is indeed required by Tennessee v. Garner. And more broadly,
even if the caselaw generally avoids case-by-case evaluations (one
item that the quote from Justice Thomas's opinion condemns), it does
not uniformly apply to enforcement of �all rules and regulations
irrespective of the perceived importance of any of those rules.�
So it seems to me that Justice Thomas�s opinion here finds consistency
and uniformity in an area where the cases are either inconsistent with
each other or at least not uniform (even if their positions can be
somehow reconciled). Perhaps the position that Justice Thomas is
endorsing with regard to crime severity and constitutional
line-drawing is the sound one. But it seems to me that it needs to be
defended more on the merits, rather than by reliance on a supposedly
�basic principle� derived from the existing precedents -- precedents
that are actually quite mixed on this question.
References
1. http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf
2. http://www.law.ucla.edu/volokh/severity.pdf
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