Roberts and the Fourth Amendment

Jacob Sullum | September 12, 2005

Thomas K. Clancy, a visiting professor at the University of Mississippi School of Law, has written an interesting and somewhat discouraging analysis of the eight Fourth Amendment cases in which John Roberts has participated on the U.S. Court of Appeals for the D.C. Circuit: four in which he wrote the majority opinion, one in which he wrote a dissent, and three in which he joined the majority without writing an opinion. Roberts sided with the government in all eight cases, generally based on defensible readings of the relevant precedents. That description includes his reasoning in the notorious "French fry" case, in which Roberts concluded that arresting a 12-year-old girl for eating in the subway, though stupid and cruel, did not violate the Fourth Amendment because the existence of probable cause was undisputed.

One conspicuous exception, Clancy argues, was a case in which Roberts concluded that evidence of drug possession discovered during a so-called Terry frisk should not be suppressed. Such frisks are supposed to be limited to protecting police officers from concealed weapons, and the officer in this case testified that he did not believe the object he felt during the frisk, a cocaine scale, posed a threat to him. Substituting his own speculation for what the officer actually believed, Roberts said the object, while clearly not a gun, might have been a box cutter or some other potential weapon.

[via Grits for Breakfast]

Comments

|9.12.05 @ 12:38PM|#

Roberts has been sold as a Rehnquist clone. Rehnquist spent his entire career attacking the exclusionary rule. We should we expect anything different from Roberts?

The only surprise here is that Bush seems to have chosen correctly if his aim was to appoint Rehnquist 2.0

|9.12.05 @ 12:44PM|#

It's a purely objective test. It doesn't matter what the officer thinks. If the policeman said he was pulling over a guy because he had a hunch there were drugs in the car and, incidentally, he had a broken taillight, the stop would still be good (b/c the taillight is an objective reason). Y'all may not like it, but it's a basic Fourth Amendment analysis.

MP|9.12.05 @ 12:50PM|#

A broken taillight is not probable cause for a warrantless search. The cop would still have to claim to have smelled/seen something related to the item he was searching for.

|9.12.05 @ 12:56PM|#

"Y'all may not like it, but it's a basic Fourth Amendment analysis."

Not sure where this was directed, but if it was the Terry stop case mentioned in the blurb, you may need to go back to law school. It most definitely is a subjective test - did the officer believe he was feeling a weapon? Some Judges have tried to impose a reasonableness requirement on top of that - was it reasonable that the officer thought that the penny was a gun? But the conservative law and order types have resisted that mightily.

Roberts's analysis (accepting that the blurb has recounted his reasoning properly) negating the actual officer's testimony as to what he believed and instead engaging in a discussion of what the officer MIGHT have believed is so far from the proper analysis that "Bizarro World" just about captures it.

Which is to say nothing of the actual validity of Terry stops - which was invented out of thin air about 40 years ago. And which reasoning is totally incompatible with the reasoning put forward in the Nevada "failure to provide papieren, bitte" case decided recently.

|9.12.05 @ 1:04PM|#

"And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search �warrant a man of reasonable caution in the belief� that the action taken was appropriate?"
Terry v. Ohio, 392 US 1, 21-22

|9.12.05 @ 1:07PM|#

No, a broken taillight is not PC for a warrantless search. It is, however, reasonable suspicion for a traffic stop. I merely used that example to illustrate a common argument (the "pretextual stop" claim) that has been rejected by the Supreme Court, i.e., it doesn't matter what the officer was thinking (or his reason for the stop) as long as there was an objective reason for doing so.

|9.12.05 @ 1:15PM|#

Good. You've done half the job, and read one sentence. Now read the facts. In Terry, the officer testified that he believed he was feeling a weapon. So, the Court said (in Terry - the Rhenquist Court did everything in its power to scale back this requirement) this belief must be reasonable (objective). This is extremely different from what you were positing - that it was an entirely objective test, ala negligence, in which a fact-finder can engage in conjecturing about what a person "should have known". In Terry, the objective standard is meant to be a check on police power - would a reasonable person believe a penny is a weapon?

In contrast (Again, if this blurb is telling the truth), Roberts said "well, the cop didn't believe it was a weapon at the time, but, in hindsight, I think he should have believed it was." Turning the objective part from a limitation to an expansion. Kind of like the Court's treatment of the Commerce Clause.

|9.12.05 @ 1:22PM|#

Jeez, do I have to do this all day?

Ohio v. Robinette, 519 U.S. 33, 37 (1996) ("the subjective intentions of the police officer did not make the continued detention of respondent illegal under the fourth amendment")

Whren v. United States, 517 U.S. 806, 813(1996)("'the fact that an officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's actions does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.' ... Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.")

Look, I know that a minority of circuits (the First, I think, and maybe one other) have held that an officer making a frisk has to have a subjective fear that a weapon is there. But those cases came before Whren, and frankly, I don't think they're good law.

As far as the "historical fact" thing is concerned, an appellate court is not bound by irrelevant historical fact. See Whren, above.

|9.12.05 @ 1:26PM|#

"In Terry, the objective standard is meant to be a check on police power - would a reasonable person believe a penny is a weapon?"

I agree with that. And I can see an argument that a reasonable officer wouldn't think that a drug scale was a weapon. But that's quite a different argument from "even if it felt like a gun you couldn't pull it out and check because you subjectively knew it wasn't a gun" or something like that.

|9.12.05 @ 1:28PM|#

Robinette is inapplicable (might want to check to see what the case was about). And, as I noted, Rhenquist et al. have done everything they can to remove any check on the powers of the police, so Whren proves nothing other than the fact that the Court has long ago left any pretention that it is applying the Constitution when it comes to the 4th amendment.

the point is, Terry did not set forth the test you or Whren do. The language from Terry (which itself has no basis in the language of the constitution) was quoted out of context (much like you did) to justify an expansion of state power in Whren. Much like the Commerce Clause was flipped on its head in Wickard, the Rhenquist Court flipped the 4th upside down.

|9.12.05 @ 1:29PM|#

I think that Roberts accurately applied the Terry standard in the last case. It is the "reasonable officer" that matters, not the officer in question at the stop. This, of course, can cut both ways (and I would posit suggests that a judge substitute his own reason for that of the officer).

|9.12.05 @ 1:33PM|#

Well, you're making progress. You've moved from "Roberts is in the bizarro world" to well, yeah, that's the law, but it's all Rehnquist's fault.

Let me try to 'splain something. As an Article III judge, Roberts is bound by Supreme Court precedent. I see nothing bizarro about his applying an objective standard (announced by the Supreme Court) to a garden variety stop-and-frisk case (a standard that is, as it should be universally accepted).

That's my main problem with Prof Clancy's piece: Roberts isn't some kind of freaky outlier wrt this stuff. Pretty run-of-the-mill, really.

|9.12.05 @ 1:38PM|#

By the way, concerning Robinette, um, are you on drugs? I'm not sure what you think it's "inapplicable" to, but the specific holding of the Ohio SCt that was reversed by the US SCt was:

�When the motivation behind a police officer's continued detention of a person stopped for a traffic violation is not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure.�

Maybe it's just me, but that seems tangentially related to this discussion.

|9.12.05 @ 2:31PM|#

On drugs? Isn't that the point of being libertarian?

Hippies who can read. :)

|9.12.05 @ 3:17PM|#

I think both Monk and Quasi are wrong. The idea that a "reasonableness" test is objective is ludicrous. I've read some of the courts' conclusions from these kinds of tests. What they think is "reasonable" I think is fucking insane.
I think adults should be able smoke in thier house all day long if they want. I say this is reasonable, others say it is unreasonable. No matter how you approach it, reasonableness is an axiological preference, not an application of formal logic or some sort of algorythym (Sp?).
I think such thing as an objective test would be a valid syllogism (syllogism in the sense of formal rules of logic...not these jack off things called precedent which...gasp, could be wrong). Then the Court could apply the facts to the syllogism. Then the rest of us could argue whether the conclusion was sound.
But these dickheads wouldn't know a modus tollens if it bit them in the fucking ass. Look, the big hoohaas have just said that stealing land from one private person and giving it to another private person is, somehow, a public use. With reasoning like this, who needs Hitlers?

|9.12.05 @ 3:29PM|#

Yeah, but the problem is that we're stuck with the text of the Fourth Amendment (which happens to use the word "reasonable"). I'm not so sure it's impossible to come up with a kind of universally agreed-upon set of principles that connote and idea of reasonableness when it comes to whether a cop can frisk you or not. One of those principles is "officer safety". The difficult part is at the margins (like, something in a pocket that is obviously the outline of a gun should probably be removed during a detention, but what do you do about a hard square thing that turns out to be a scale?).

Besides, you had me at axiological.

|9.12.05 @ 3:56PM|#

"You've moved from "Roberts is in the bizarro world" to well, yeah, that's the law, but it's all Rehnquist's fault."

Nope. It's not the law, if you're actually trying to apply the Constitution. If you're going to say that whatever some politically appointed doofus wants it to say is the law, then, okay. But don't dress it up as "law" - personal preference is more like it.

And don't claim that quoting Terry out of context is somehow obeying precedent.

As for Robinette - valid traffic stops are not Terry stops. Tangential? Heck. I'll let you have that. I prefer direct - like the actual wording of the Constitution. Stopping someone (of course, Terry presumed that you were free to go, but that's been changed) and forcing a search of them absent probable cause doesn't fit into the 4th, no matter how hard you try to twist it.

Just like saying that Terry said that a judge can disregard what the officer actually thought and imagine what an officer in bizarro world might have thought in order to determine whether the seizure was legal. Again, it's turning the wording 180 degrees to make it mean EXACTLY the opposite of what it actually meant.

As far as being an Article III judge - nothing in that forces him to second guess the cop. If the cop testified that he didn't believe it was a weapon, it wouldn't be too hard to write an opinion saying the cop is reasonable, i believe him, the scale was objectively not a weapon. But he didn't. That's enough for me to know that Roberts loves big government - as long as it is his type of big government...

|9.12.05 @ 4:36PM|#

Roberts view on the 4th amendment is pretty much irrelevant. The 4th and 5th amendments were destroyed long ago by the war on drugs.

|9.12.05 @ 4:39PM|#

Roberts view on the 4th amendment is pretty much irrelevant. The 4th and 5th amendments were destroyed long ago by the war on drugs.

|9.12.05 @ 4:46PM|#

Roberts view on the 4th amendment is pretty much irrelevant. The 4th and 5th amendments were destroyed long ago by the war on drugs.

|9.12.05 @ 5:47PM|#

Okay, I get it. You want it to happen. You want it bad. You want your view of the Fourth Amendment to suddenly become "the law." But it ain't gonna happen. And I'm sorry.


"It's not the law, if you're actually trying to apply the Constitution. If you're going to say that whatever some politically appointed doofus wants it to say is the law, then, okay. But don't dress it up as "law""

'kaaaay. I guess this is just rhetorical grandstanding and not meant to be taken seriously. To the extent you think the courts are wrong, I can respect that (no, really). But to pretend that the law surrounding the Fourth Amendment is not "the law" is just, well. . . never mind.



"And don't claim that quoting Terry out of context is somehow obeying precedent."

I don't think there's a lawyer on the face of the planet who would think that quoting a sentence from Terry (which is essentially one of the holdings) concerning the objective reasonableness standard is "quoting it out of context." Not even in the ACLU.



"As for Robinette - valid traffic stops are not Terry stops."

Lord, help me. "In both of these respects, the usual traffic stop is more analogous to a so-called 'Terry stop,' see Terry [citation], than to a formal arrest." Berkemer v. McCarty, 468 US 420, 439 (1984).



"of course, Terry presumed that you were free to go, but that's been changed"

Okay, now you've really lost me. It's a FREAKIN' TERRY STOP! What part of "stop", i.e., detention, do you not understand? Never mind, let's just go to Terry (discussing stop-and-frisks generally): "It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has �seized� that person." Terry, 392 US at 16.

That doesn't sound like someone who's free to go.



"Again, it's turning the wording 180 degrees to make it mean EXACTLY the opposite of what it actually meant."

Well, not really -- it's just that it's irrelevant what the officer says about his motivations.



"If the cop testified that he didn't believe it was a weapon, it wouldn't be too hard to write an opinion saying the cop is reasonable, i believe him, the scale was objectively not a weapon."

Except, again, it doesn't matter what the cop thinks it is -- although I could imagine an opinion saying that a reasonable cop could not have thought it was a weapon. But it's kinda rare for an appellate court to find that a hard, bulky object inside someone's pants found during a frisk could not reasonably be thought of as a weapon. More of a problem with something soft, like a baggie of heroin, or something.

Warren|9.12.05 @ 6:05PM|#

I think it's safe to conclude that the Roberts court will continue the tradition of fucking us ever harder, as has been long established by precedent.

|9.13.05 @ 10:04AM|#

This is what you get when the judiciary has forsaken it's role in our government. This debate makes me long for a couple of Borks sitting on the bench. Strict constitutionalists would be a welcome sight. And why would anyone consent to a search if they feel it's unreasonable. No consent,no case.

|9.13.05 @ 10:15AM|#

I don't think a strict contructionist would find much textual support for an exclusionary rule.