Police, The Fourth Amendment, Qualified Immunity

Judge Posner explains something odd about 4A

with 3 comments

The Fourth Amendment provides some standards (most notably “probable cause”) for magistrates to follow when issuing search warrant, but it never comes out and says that a warrant is is ever required.  On its face, this doesn’t make sense.  Specifically, why would law enforcement ever choose to get a warrant when they could avoid the warrant requirements by simply choosing not to get a warrant.  This is especially perplexing because the fourth Amendment, itself, does not provide a cause of action against law enforcement officials who make an unreasonable search or arrest.  To me, the answer to this Constitutional conundrum is a simple one, which is that the Fourth Amendment is clearly written on the assumption that warrants are generally required, and that this was widely understood at the time.

In a recent dissent, Judge Posner recognizes the problem, but gives a slightly different answer.

Case:  Burritt v. DITLEFSEN, Court of Appeals, 7th Circuit 2015

Before we get to the Constitutional issues, I want to point out that this is a very interesting case (even for non-lawyers) involving a false, and opportunistic, allegation, by an eleven year old female, of sexual abuse that did not occur.  click the link to read the full case.  moving on to the 4A issue. . .

Judge Posner in dissent:

I have a separate concern about the handling of this case—a concern with automatically, uncritically, allowing the arrest of a person in his home when no arrest warrant has been issued. It’s true that the Fourth Amendment does not require search or arrest warrants at all (in retrospect a rather embarrassing omission); the only mention of warrants is found in the clause outlawing general warrants. That clause states that warrants must be based on probable cause, supported by an oath or affirmation, and describing with particularity the target of the warrant. But the only requirement of a lawful search or seizure set forth in the amendment is that it be reasonable; there is no suggestion that a warrant is ever required for a search or an arrest.

Even after the Supreme Court interpreted the Fourth Amendment to require warrants in some circumstances, “warrantless felony arrests outside of the home routinely . . . survived constitutional attack as long as probable cause [to arrest] exist[ed].” United States v. Winchenbach, 197 F.3d 548, 554 (1st Cir. 1999). This understanding stemmed from the “the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.” United States v. Watson, 423 U.S. 411, 418 (1976). The Court in Watson reasoned that “the public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law.” Id. at 419. Concurring, Justice Powell explained that “logic [ ] would seem to dictate that arrests be subject to the warrant requirement at least to the same extent as searches. But logic sometimes must defer to history and experience. . . . There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers. . . . In sum, the historical and policy reasons. . . fully justify the Court’s sustaining of a warrantless arrest upon probable cause, despite the resulting divergence between the constitutional rule governing searches and that now held applicable to seizures of the person.” Id. at 429, 432.

Comment:  In the internal quote, I think that Justice Powell is saying that: (i) searches generally require warrants based on probable cause; (ii) felony arrests generally only require probable cause; and (iii) felony arrests in the arrestee’s home may sometimes require a warrant.  I, Burgers, remain of the opinion that the Fourth Amendment has been widely misinterpreted by the courts and is more properly read to be based on an assumption that warrants are generally required for searches and seizures, and that the exceptions (if any) should be extremely narrowly drawn as being against 4A’s clear (to me) implication that warrants are always required.

Written by Burgers Allday

December 5, 2015 at 8:27 am

Posted in Uncategorized

3 Responses

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  1. Re: the Framer’s understanding at the time the 4A was ratified, you might be interested in Akhil Amar’s “Fourth Amendment, First Principles.” In a nutshell, Amar argues (and provides historical evidence for his claim) that the Framer’s did not think warrants were required for all searches and seizures. Rather, they were wary of warrants because they served to immunize law enforcement officers from civil liability when they performed searches and seizures that were later found to be unreasonable. That’s why the 4A requires a heightened showing (PC + particularity) before a warrant can be issued but only requires that searches and seizures in general be “reasonable.”


    December 20, 2015 at 8:12 pm

  2. Interesting, especially as a historical matter. So you are saying that 4A was drafted on the assumption that there is civil legal liability, on the part of government officials, for searches and seizures that they perform. Sounds like there is a new cause of action (one without qualified immunity!) lurking in that train of thought.

    Burgers Allday

    December 20, 2015 at 9:32 pm

    • Indeed, a big part of Amar’s scholarship stems from his contempt for the exclusionary rule. He thinks it’s unnecessary to let criminals go free because the right way (and the original way) to keep police in line was to sue them when they performed unreasonable searches and seizures. And he has said it might make sense to scrap qualified immunity. Put all the claims before juries, and if they think the cops acted unreasonably, then they have to pay up.


      December 20, 2015 at 10:24 pm

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