(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)
On the criminal side of the Court’s docket, I found this term’s statutory interpretation cases more interesting than the constitutional cases. In the latter category, the Fourth Amendment decisions were probably the most significant. They were:
- Fernandez v. California, 571 U.S. __ (2014) (police permissibly conducted warrantless consent search of home notwithstanding objection of one occupant).
- Prado Navarette v. California, 572 U.S. __ (2014) (anonymous 911 call sufficiently justified stop of vehicle).
- Riley v. California, 573 U.S. __ (2014) (warrant required for search of arrestee’s cell phone).
In reviewing these three cases, I think the most intriguing comparison is between Fernandez and Riley. The two decisions serve to highlight apparent inconsistencies in the Court’s stance toward search warrants.
The Court observed in Riley,
As the text [of the Fourth Amendment] makes clear, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U. S. 398, 403 (2006). Our cases have determined that “[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995). Such a warrant ensures that the inferences to support a search are “drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948). In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. See Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5–6).
The Court went on to hold that the search of a cell phone did not fall into such a “specific exception,” that is, the exception for searches incident to arrest. Along the way, the Court downplayed the burden on police of obtaining a warrant:
Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971). Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (ROBERTS, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).
Even at that, the Court acknowledged, but refused to be swayed by, a likely adverse effect on police:
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.
Contrast this stance — an insistence that the police obtain a warrant before conducting a search, even if that means that the police are somewhat less effective in some cases — with what the Court did in Fernandez.
Some factual background may help. Police pursued a robbery suspect to an apartment building. A minute or two later, they heard screaming coming from one of the units. They knocked on the door, and one Roxanne Rojas answered, apparently bruised and bloodied from an assault. Police asked Rojas to step out of the apartment so that they could conduct a protective sweep, but then Fernandez appeared at the door and flatly refused to allow the officers to enter. Undeterred, the officers placed Fernandez under arrest for assaulting Rojas and removed him from the scene. Then, they obtained Rojas’s consent to a search of the apartment, which revealed evidence linking Fernandez to the original robbery.
Whether that evidence should have been suppressed in Fernandez’s subsequent robbery prosecution turned on the scope of the Supreme Court’s earlier decision in Georgia v. Randolph, 547 U.S. 103 (2006), which held that officers may not conduct a warrantless consent search of jointly occupied premises if at least one occupant who is present objects. Fernandez was an objecting occupant, but he had been removed from the scene by police before the search was conducted. Did his objection remain in force once he was physically out of the picture?
No, the Supreme Court ruled in a 6-3 decision.
Along the way, the Court downplayed the significance of the warrant requirement and emphasized the burdens that warrants impose on law enforcement:
A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant. Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent. When a warrantless search is justified, requiring the police to obtain a warrant may “unjustifiably interfer[e] with legitimate law enforcement strategies.” King, 563 U. S., at ___ (slip op., at 13).
Gone is the sense, articulated in Riley and elsewhere, that review by a neutral magistrate offers anything of value.
In Riley, the Court declared, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.” Similarly, in Fernandez, the Court might have said, “Our answer to the question of what police must do before searching a home when an occupant objects is simple — get a warrant.”
Indeed, in at least one respect, Fernandez and Riley come out in exactly the opposite way you might expect. After all, Fernandez deals with a search of a home, which is the place where Fourth Amendment protections are traditionally thought to be the greatest, while Riley deals with a search of a cell phone — a newfangled device that the Framers could not have imagined in their wildest dreams at the time they crafted the Fourth Amendment. Shouldn’t we be protecting homes from police invasion more aggressively than we protect cell phones?
There are a number of possible explanations, though, for the way these cases came out. Let me first suggest one that comes from Linda Greenhouse, the longtime Supreme Court reporter. In a Times piece trying to account for the Court’s surprising unanimity in Riley, Greenhouse invoked the notion of empathy — the idea that the Justices could readily see themselves in the shoes of a person whose smart phone was searched and could appreciate the enormous volume and sensitivity of the personal information that could be revealed. One imagines, by contrast, that the Justices had a harder time seeing themselves in Fernandez’s shoes, trying to block the police from seeing physical evidence of a crime against a backdrop of sharp domestic conflict.
Rather than empathy, though, the Fernandez decision itself seems to emphasize a different consideration: the implication of third-party interests that were not at issue in Riley:
[A warrant] requirement may also impose an unmerited burden on the person who consents to an immediate search, since the warrant application procedure entails delay. Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” 547 U. S., at 116; see also Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4-year-old son had access.
The Court, in other words, justified its narrow interpretation of Fernandez’s rights as a vindication of Rojas’s rights.
In my view, this argument rings hollow. For one thing, if there is an urgent threat of some sort, such as a dangerous weapon in the reach of child, then police can enter the premises on the basis of the exigent circumstances exception to the warrant requirement; there is no need to rely on consent. And, in the absence of exigent circumstances, it seems a small enough imposition on the consenting occupant to require the short delay required to obtain a warrant.
More fundamentally, I think the Court’s analysis conflates the situations of an occupant who affirmatively desires a police search and an occupant who only grudgingly consents to a police search, perhaps after a dose of official intimidation. In fact, as the Fernandez dissenters pointed out, Rojas herself later stated that she felt “pressured” into giving consent after officers threatened to take her children from her. Grudging consents like this are probably much more common in practice than affirmatively requested searches. It seems odd, then, to frame the Court’s holding in Fernandez as a favor to those who share quarters with criminal suspects. Quite the contrary, Fernandez provides an incentive for officers to employ various unpleasant tactics to wring a “consent” out of reluctant co-occupants.
In any event, I suspect that there were at least three other factors at play that may have contributed to the Court’s contrasting approaches in Fernandez and Riley.
First, and perhaps most importantly, the Court satisfied itself in Riley that it could take a stand in favor of Fourth Amendment rights without having much real impact on criminal investigations once police departments adjust to the new rule. Bear in mind, Riley starts with the premise that police officers have lawfully taken possession of the suspect’s cellphone. With the phone in police custody, there is little that suspects can do to eliminate or hide evidence from the phone during the brief period of time it takes to obtain a warrant. Moreover, the Court determined, the few risks that do exist in this situation, such as remote wiping, could be largely eliminated with a few simple precautionary measures. By contrast, in the Fernandez scenario, with police barred at the door pending the production of a warrant, there is a much greater risk that evidence will be hidden or destroyed by the suspect’s supporters; there simply isn’t the level of physical control of the situation as there is in the Riley scenario.
Second, the Fernandez Court struggled to discern an easily administrable rule that would protect Fernandez’s interests. Requiring an objecting occupant to be physically present leaves little ambiguity for the courts and police. If the objection remains in force after the objector leaves, however, there are a number of uncertain questions that would have to be resolved, perhaps on a case-by-case basis, as to how long the objection remains in force and as to which officers and agencies.
Finally, Riley gave the Court an opportunity to address criticisms that it is out of touch with modern technological realities. (In her column, Greenhouse observed, “When it comes to technology, however, the court seems free of ideological baggage and is trying hard, collectively, to get it right.”) The Riley Court was able to demonstrate that it can pull its head out of the eighteenth century and adapt its constitutional jurisprudence so as to respond to distinctly twenty-first century concerns. Fernandez, on the other hand, collapsed into an all-too-familiar twentieth-century narrative: it was just another bad guy trying to get off on a technicality.
Cross posted at Life Sentences Blog.
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