Review of the Court’s Fourth Amendment cases

By Orin Kerr
on Jul 8, 2011 at 1:22 pm

The Supreme Court heard oral argument in five Fourth Amendment cases in the recently completed Term.   The Court dismissed one case as improvidently granted and didn’t reach the merits of the Fourth Amendment issue in a second case.  In the three cases that did reach the merits, however, the government’s side readily won: 8-0, 8-1, and 7-2.   Justice Alito wrote two of the three majority opinions, and Justice Scalia wrote the third.

The first of the three cases was Kentucky v. King, a case on the test for police-created exigent circumstances.   The Fourth Amendment requires the police to have a warrant before entering a home unless “exigent circumstances” — some sort of emergency — exists.   Under the doctrine of “police-created” exigent circumstances, however, the police can’t create an exigency and then rely on it to search without a warrant: The question in King was the test for these “police-created” exigent circumstances.  In a decision by Justice Alito, the Court crafted a test:  As long as the police engage in conduct that does not violate the Fourth Amendment or threaten to violate the Fourth Amendment, any response to police conduct from inside the home that can be considered part of the exigent circumstances is not considered part of police-created exigent circumstances. That is, the “exigent circumstances” determination can properly consider all the facts as long as the police didn’t violate the Fourth Amendment or threaten to violate the Fourth Amendment.  Justice Ginsburg filed a solo dissent, arguing for a more protective rule that an exigency should be considered police-created if it was prompted by police conduct on the scene.

The second case, Davis v. United States, was about the scope of the exclusionary rule.  (Full disclosure: I represented the petitioner.) The issue was whether the exclusionary rule applies when a search was deemed constitutional when it occurred but the Supreme Court changes the law and deems the search unconstitutional while the criminal prosecution is still pending.  In another decision by Justice Alito, the Court held that the good-faith exception extends to such searches and the exclusionary rule does not apply.   The Court reasoned that the purpose of the exclusionary rule was about deterring police misconduct, and a police officer who followed then-existing law was not engaged in misconduct and did not need to be deterred.   The Court recognized that this rule might need to be tempered in a future case to provide incentives to challenge existing law, but reasoned that the Court could confront that question and carve out an exception to its exception if necessary in a future case. Justice Sotomayor concurred, agreeing with the Court but noting that its holding was limited to cases where then-existing precedent clearly allowed the search.  Justice Breyer dissented, joined by Justice Ginsburg, and argued that the Court was replaying its long debate over retroactivity under  a new label of “good faith.”

In the third case, Ashcroft v. al-Kidd, the Court overturned 8-0 (with Justice Kagan recused) a Ninth Circuit decision that would have held former Attorney General John Ashcroft personally liable for using the material witness statute to engage in detention for terrorist purposes.  All eight participating Justices agreed that the Ninth Circuit had erred in denying qualified immunity to Ashcroft.  Given the dearth of caselaw on the question, the Justices agreed, Ashcroft had not violated “clearly established” law and could not be personally liable.  [Disclosure:  Goldstein, Howe & Russell, the sponsor of this blog, filed an amicus brief in support of the respondent in this case.]

On the merits of the Fourth Amendment issue, however, the Justices in al-Kidd were somewhat divided and a bit uncertain, and the holding of the opinion is rather narrow.  Here things get a bit technical. al-Kidd had conceded that using the material witness statute to detain him would have complied with the Fourth Amendment if the government had a genuine purpose to detain him as a material witness — that is, for a witness in a criminal case.   The detention was unconstitutional, al-Kidd reasoned, because the government really wanted to detain al-Kidd as a terrorist suspect instead.  In light of that concession, the majority opinion by Justice Scalia construed the case as presenting only the question of whether a pretextual motive alone could make an otherwise constitutional detention unconstitutional.  Justice Scalia concluded that the answer was “no,” reading the caselaw to say that pretextual purpose was relevant only in special-needs and administrative-search cases.   Because this was a case involving a warrant, Scalia reasoned, purpose was irrelevant and the plaintiff’s case failed.

A flurry of concurring opinions followed.  Justice Kennedy concurred, noting the limited nature of the Court’s holding, and in particular noting that the Court had not answered whether the detention was actually unconstitutional and stressing the importance of qualified immunity.  Justice Ginsburg and Justices Sotomayor also concurred, both arguing that the Court should not have reached the merits of the Fourth Amendment issue and contending that the questions the Court addressed were more complicated that the majority suggested.

What’s the take-away from the Term’s Fourth Amendment cases?   Three quick observations come to mind.

First, the current Court is rather friendly to the government in Fourth Amendment cases.    Of the three cases on the merits, the government’s side won 23 votes and lost only 3 votes.   This Term, at least, none of the Fourth Amendment cases were even close.  Second, it’s interesting that Justice Alito wrote two of the three cases.   Of all the current Justices, Justice Alito is perhaps the Justice seen as most often in sync with the government’s take in Fourth Amendment cases.  If Justice Alito is writing a lot of Fourth Amendment cases going forward, that is likely to be very good news for the government.

Finally, it’s particularly interesting that neither of the two newest Justices, Justices Sotomayor and Kagan, voted for a defendant or civil plaintiff in any of the three cases.  It’s important not to make too much of that conclusion, to be sure.   al-Kidd was an obvious Ninth Circuit blunder on the qualified immunity issue, and Justice Sotomayor’s concurrence in that case leaves her views on the Fourth Amendment issue unclear (and Justice Kagan recused herself in that case, as well).  Justice Sotomayor’s concurrence in Davis suggests she may not go as far as the majority in pulling back on the exclusionary rule in the future.  Still, it is noteworthy that the only votes for criminal defendants or civil plaintiffs in the Term’s Fourth Amendment cases were two by Justice Ginsburg and one by Justice Breyer.