Editor’s note: this essay is excerpted from a law review note & comment being written by your humble blogger for submission and publication to a law review journal. This section addresses the effects of the War on Drugs on America’s federal Fourth Amendment jurisprudence. If you have questions regarding anything you see here, or are looking for source info, feel free to send me a message via Ask Box. Also, Keep in mind that Tumblr is not a scholarly source, as much as we all might fancy ourselves to be “wicked smaht,” as Will Hunting might say. So if by chance you are looking to cite the substance of this article for academic reasons, please hold off for awhile until the article is completed and submitted, which will occur sometime in June, 2012, at which time it will be competent to cite as an unpublished article.

*********************************************************************

In 1984, two years after Reagan declared his support for the War on Drugs, the Supreme Court decided United States v. Leon. The defendants in Leon were suspected of drug trafficking. A police investigation sparked by a “confidential informant of unproven reliability” eventually led the police to the home of Alberto Leon, in Burbank, California. After further investigation, the police executed a search warrant at Leon’s residence and discovered large quantities of drugs, after which Leon was arrested. The search warrant was later found to be defective at a pre-trial suppression hearing. Leon moved to suppress the drug evidence discovered at his Burbank residence on the basis of the defective warrant. Applying the rule from Mapp v. Ohio, the district court granted Leon’s motion to suppress. The Court of Appeals affirmed.

The Supreme Court reversed.[11] The Court first noted that the question of whether a Fourth Amendment violation has occurred is separate from the appropriate remedies therefor.[12] The Court then proceeded to note that the remedy of exclusion is harsh, because excluding evidence often means that “some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.” The Court also noted that the officers in this case believed in good faith that they had legal authority to search Alberto Leon’s home, which implies that they would not have behaved any differently whether or not the evidence was excluded. Relying on this logic, the Court modified the exclusion rule so that it only applies in cases where suppressing the fruits of an illegal search can be reasonably expected to deter future violations of the Fourth Amendment. The Court believed that, since the officers who searched Alberto Leon’s home believed they had legal authority to do so, the officers’ conduct would not have been deterred even if they knew the evidence would be excluded at trial.

But was this really true? Justice Brennan, sitting on the Court at the time Leon was decided, was furious with the Leon majority. He filed a vigorous dissent, implying in so many words that the Court’s holding effectively robbed the Fourth Amendment of its meaning:

Ten years ago…I expressed the fear that the Court’s decision [in United States v. Calandra, 414 U.S. 338 (1974)] “may signal that a majority of my colleagues have positioned themselves to reopen the door [to evidence secured by official lawlessness] still further and abandon altogether the exclusionary rule in search-and-seizure cases.” Since then, in case after case, I have witnessed the Court’s gradual but determined strangulation of the rule. It now appears that the Court’s victory over the Fourth Amendment is complete. That today’s decisions represent the pièce de résistance of the Court’s past efforts cannot be doubted, for today the Court sanctions the use in the prosecution’s case in chief of illegally obtained evidence against the individual whose rights have been violated—a result that had previously been thought to be foreclosed.

Brennan’s dissent was disturbingly prescient; Leon would indeed prove to be the “pièce de résistance” in the Court’s Fourth Amendment jurisprudence, as an ever-growing number of drug cases utilized Leon’s holding to expand the scope of exceptions to the Fourth Amendment’s warrant requirement to unprecedented horizons.

The effect of the War on Drugs on the Court’s Fourth Amendment jurisprudence is difficult to exaggerate. Its impact has been so profound that “some commentators charge that a virtual ‘drug exception’ now exists to the Bill of Rights.” At least two Supreme Court justices have openly admonished their colleagues for participating in a wholesale mortgaging of Fourth Amendment rights to the War on Drugs. Justice Stevens, seven years after Leon, was less than cordial about this fact in his dissent from California v. Acevedo:[22]

In the years [from 1982 to 1991], the Court has heard argument in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure. In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the on the Court makes today will support the conclusion that this Court has become a loyal footsoldier in the Executive’s fight against crime.

Stevens was essentially confirming Brennan’s fears. The laundry list of drug-related cases in which the Court has given the benefit of the doubt to law enforcement is frighteningly long.[24] More frightening still is that every single one of those cases represents another precedent that carves out a new grant of leeway for law enforcement officials pursuing drug-related offenses.

Perhaps the most disturbing of these cases was United States v. Herring,[25] a 2009 case where the Court expanded Leon’s good faith exception to include arrests made pursuant to an imaginary warrant borne out of administrative negligence by police.[26] Justice Ginsburg, writing for the dissent, described the consequences of the Court’s ruling:

[Herring] was arrested, and subjected to a search…although no warrant was outstanding against him, and the police lacked probable cause to believe he was engaged in criminal activity… The Court, however, holds the rule inapplicable because careless recordkeeping by the police—not flagrant or deliberate misconduct—accounts for Herring’s arrest… [T]he most serious impact of the Court’s holding will be on innocent persons wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.

Ginsburg’s dissent sums up the current state of the law: after twenty-seven years of Drug War jurisprudence since Leon, it is now constitutionally permissible in some circumstances for police to both search and seize you, without an independent source of probable cause or an actual warrant. And despite these constitutional infirmities, all evidence of criminal activity will still be admitted against you in a court of law, even if the police admit they violated your Fourth Amendment rights.[28]

The Herring Court’s sanction of negligent police activity was difficult to swallow. However, the “official lawlessness” sanctioned in Herring is still yet not the upper limit of the Court’s Fourth Amendment case law: in 2011, the Court took away what might be viewed as the last remaining safe-harbor, the “police-created” exigent circumstances doctrine (PCECD),[29] by adopting an absurd, tautological standard for administrating the PCECD in Kentucky v. King.[30] The practical result of King is that police who want to execute a warrantless search are essentially allowed to manufacture the exigent circumstances that justify the warrantless search, so long as they don’t do it in a way that otherwise violates the Fourth Amendment. It’s difficult to understand how to apply the King Court’s holding, however, because on its face, it is senseless: the entire question in the case, of course, was whether actions of the police had violated the Fourth Amendment. The King Court’s holding amounts to saying that police violate the Fourth Amendment when they violate the Fourth Amendment. And this is to say nothing of the inescapable dilemma that the King Court created by affirming the trial Court’s ruling with respect to the evidence that demonstrated the existence of exigent circumstances. After King, the only thing left of the PCECD is a hollow tautology buried inside a catch-22.

In the aftermath of King, what remains of the Fourth Amendment’s Exclusionary Rule has left some commenters wondering whether the Court will simply do away with the Exclusionary Rule entirely.[33] Indeed, in Weeks v. United States, the 1922 case that announced the Exclusionary Rule, Justice Day noted:

If letters and private documents can…be [unlawfully] seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.

Justice Day’s dicta grants us an insight into why excluding evidence is the only way to meaningfully deter violations of the Fourth Amendment. Most Fourth Amendment violations simply do not result in much material harm to the victim. The harm of a Fourth Amendment violation is the fact of being made subject to criminal sanctions. Civil recoveries for damages to person and property are virtually unheard of in § 1983 suits for Fourth Amendment violations involving illegally obtained evidence.[35] Without the remedy of exclusion, victims of unconstitutional police conduct are left with virtually no remedy. Indeed, Thomas Davies, a professor at the University of Tennessee, has suggested that the only usefulness of the modern Exclusionary Rule, riddled as it is with exceptions and flexibility, remains in the procedural benefit of requiring police to explain their actions in a suppression hearing: “although it rarely leads to suppression of evidence, it does make police arrest and search conduct visible to other actors through motion to suppress hearings. By requiring officers to explain their conduct, motions to suppress provide an important training function.” In other words, contemporary suppression hearings are often simply Potemkin judicial theatre, wherein criminal defendants are rarely successful in invoking the Exclusionary Rule, and the legality of police actions essentially doesn’t matter.

This is the jurisprudence that the drug war has helped create: it is one in which blatant police misconduct goes unpunished, warrants are no longer necessary, police negligence is rewarded, and suppression hearings resemble judicial theater more than due process. Orwell could not have weaved a better tale.



