Journal of Criminal Law and Criminology Volume 100 Article 10 Issue 3 Summer Summer 2010 The uprS eme Court Giveth and the Supreme Court Taketh Away: The eC ntury of Fourth Amendment Search and Seizure Doctrine Thomas Y. Davies Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Thomas Y. Davies, The uS preme Court Giveth and the Supreme Court Taketh Away: The eC ntury of Fourth Amendment Search and Seizure Doctrine, 100 J. Crim. L. & Criminology 933 (2010) This Symposium is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/10/10003-0933 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 100, No. 3 Copyright © 2010 by Thomas Y. Davies Printed in U.S.A. THE SUPREME COURT GIVETH AND THE SUPREME COURT TAKETH AWAY: THE CENTURY OF FOURTH AMENDMENT “SEARCH AND SEIZURE” DOCTRINE BY THOMAS Y. DAVIES∗ [I]ndependent tribunals of justice . will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the [Bill of Rights]. —James Madison** I. INTRODUCTION The century during which the Journal of Criminal Law and Criminology has been published roughly matches the lifespan of Fourth Amendment “search and seizure” doctrine. The Journal appeared in 1910, while it is generally (and correctly) accepted that the 1914 decision Weeks v. United States1 marks the birth of the modern Fourth Amendment.2 ∗ Elvin E. Overton Distinguished Professor of Law and National Alumni Association Distinguished Service Professor of Law, University of Tennessee College of Law. B.A. (1969), University of Delaware; M.A., J.D. (1975), Ph.D. (political science) (1980), Northwestern University. The author thanks Wesley M. Oliver and George C. Thomas III for comments on a draft of this article, and also thanks his colleague Sibyl Marshall for assistance in locating fugitive sources. He remains solely responsible for all opinions or errors. In addition to his academic articles on search and seizure topics, the author appeared “of counsel” and assisted with the defendants’ brief on reargument in Illinois v. Gates, 462 U.S. 213 (1983), and did likewise in Illinois v. Rodriguez, 497 U.S. 177 (1990). He has also testified before the United States Senate Committee on the Judiciary in opposition to legislative proposals to curtail the operation of the exclusionary rule. ** 1 ANNALS OF CONG. 440 (J. Gales ed. 1834) (speech by James Madison to the House of Representatives Proposing a Bill of Rights, June 8, 1789). 1 232 U.S. 383 (1914). 2 See, e.g., United States v. Robinson, 414 U.S. 218, 224 (1973) (“Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States . it is understandable that virtually all of this Court’s search-and-seizure law has been developed since that time.”). 933 934 THOMAS Y. DAVIES [Vol. 100 Unsurprisingly, the Journal has published many articles on search and seizure issues since that time.3 However, the two stories have now diverged. The Journal continues to be a vibrant institution, but over roughly the last four decades the continuing conservative majority of the justices of the Supreme Court have reduced Fourth Amendment doctrine to little more than a rhetorical apparition. Hence, it is appropriate to refer to “the” century of search and seizure doctrine. Although it is unclear whether the justices will refrain from explicitly ending enforcement of constitutional limits on government arrest and search powers, they have already drained those limits of almost all of their practical content. And, notwithstanding the usual clichés regarding historical pendulums (where does such nonsense come from?), it seems quite unlikely that destruction will be reversed. My assignment for this Symposium is to tell the story of the invention, development, and dismantling of Fourth Amendment search and seizure doctrine over the last century. Of course, readers will likely already be familiar with at least the landmarks. Hence, my ambition is to broadly sketch out what might be called the trajectory of search and seizure doctrine while at least beginning to link that story to the larger history of the Supreme Court itself—that is, to the shifting concerns that motivated the justices as the Court’s membership and the politics of criminal procedure changed. The Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.4 It is fashionable to lament the maddeningly cryptic character of the Fourth Amendment’s text5 as well as the confused or unmoored state of 3 A word search of the titles of articles and comments published in the Journal indicates that the first search and seizure piece appeared in 1947. Thereafter, pieces on constitutional search and arrest issues began to appear more frequently, especially after the Journal instituted an annual review of Supreme Court decisions in the 1970s. A large proportion of the cases discussed in the latter part of this article have been the subject of such commentary. Authors of search and seizure articles in the Journal have included many of the leading commentators including, to name only a few, Francis Allen, Joseph Grano, Fred Inbau, Yale Kamisar, and Wayne LaFave. 4 U.S. CONST. amend. IV. 5 See, e.g., Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 353-54 (1974) (characterizing the text as “brief, vague, general[, and] unilluminating”). 2010] CENTURY OF “SEARCH AND SEIZURE” DOCTRINE 935 search and seizure doctrine.6 Indeed, those complaints may seem painfully obvious if one attempts to systematically set out the rationales and content of current search and seizure doctrine and to then relate that doctrine to the text. However, such doctrinal incoherence should hardly come as a surprise. If the professional pretense that the law develops through judicial discovery of the true meaning of a text or of the internal logic of principles and precedents was ever tenable, it surely no longer is. Instead, the basic contention advanced by the legal realists more than a half century ago—that textual interpretations and doctrinal conceptions are shaped by the outcomes that judges seek to justify far more than the other way around—is patently obvious. Indeed, the realists’ insight provides a particularly powerful explanation of Supreme Court decisions regarding ideologically charged topics such as criminal procedure.7 Although the potential for appellate review means that lower court judges are constrained to hew to the legal doctrine set out by the high court to some significant degree, the justices of the Supreme Court are not similarly confined. Perhaps because no other institution has the power to review constitutional rulings by the Supreme Court,8 the justices’ behavior often resembles that of a vote-casting legislature at least as much as a court in the usual sense.9 Indeed, the case could be made that the history of constitutional law has been largely (one might be tempted to say merely) the story of who held the fifth swing vote when decisions were made. However, a realist perspective does not go so far as to claim that legal doctrine does not matter at all. The public expects judicial decisions to be 6 See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 759 (1994) (describing Fourth Amendment doctrine as “rudderless and badly off course”). 7 For a still classic example of the legal realist perspective on the Supreme Court, see FRED RODELL, NINE MEN: A POLITICAL HISTORY OF THE SUPREME COURT FROM 1790-1955 (1955). 8 Although the Court’s constitutional rulings are unreviewable in the short term, it has long been evident that the course of Supreme Court decisions ultimately follows public opinion, albeit with a sometimes considerable lag-time. See, e.g., ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 105-11 (1956) (observing, with regard to judicial review, that the Supreme Court might delay but would not stop “a persistent law making majority”). 9 The tendency of Supreme Court justices to distort existing doctrine to produce the desired results is not a recent development. Rather, the justices have been revising the Constitution almost from the beginnings of the Supreme Court. I hope to publish an article in the near future that will document that the Marshall Court concocted the famous claim of unconstitutionality in Marbury v. Madison, 5 U.S. 137 (1803), by deliberately evading the then-settled understanding that mandamus was an inherent superintending power of the supreme court in a country or state, and thus imposed a novel meaning on the limits on the Supreme Court’s “original jurisdiction” in Article III of the Constitution that the Framers would not have imagined. 936 THOMAS Y. DAVIES [Vol. 100 justified in terms of precedent and principle, and also expects that the justices usually should change the law incrementally. Thus, because the justices seek to provide public rationales for their rulings, the course of doctrinal development is shaped to a significant degree by the opportunities or weaknesses that the justices perceive in existing doctrine. Hence, in much the same way that the course of a stream seeks out weaker strata, the rationales in opinions (which, of course, do not necessarily reflect the actual motivations for the justices’ votes) often exploit the state of the existing doctrinal terrain.