From: <sgr2105@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Tue, 10 May 2005 15:28:51 -0400

2nd Paper: Fortifying the Fourth Amendment

Pasted below is my 2nd paper. The attached version includes
citations.


Sam Roseme
05/10/05

FORTIFYING THE FOURTH AMENDMENT

	The protective power of the Fourth Amendment has significantly
diminished over the past century.  It has gotten to the point where
law enforcement can essentially disregard the amendment, confident
that their actions will fall into one of the many exceptions the
Supreme Court has carved out of the amendment’s mandate.  This
paper will not suggest revising the amendment’s text. Instead, it
argues that one of the primary causes of this weakening of the
Fourth Amendment is the remedy for violating its constitutional
right—the exclusionary rule.  This paper also argues that one way
to begin rebuilding the protections the Framers intended is to
fortify the amendment by providing a tort remedy in addition to the
exclusionary rule.

The exclusionary rule was born out of a case in which the Supreme
Court believed it was laying down a clear rule that would limit the
powers of law enforcement.  The exclusionary rule was first applied
to federal cases in Weeks v. United States .  The Court stated:

“If letters and private documents can thus be seized and held and
used in evidence against a citizen accused of an offense, the
protection of the Fourth Amendment declaring his right to be secure
against such searches and seizures is of no value, and, so far as
those thus placed are concerned, might as well be stricken from the
Constitution.”

The Court did not apply the exclusionary rule to the states until
almost 50 years later.   In that case, the Court stated that one
justification for adopting the exclusionary rule was, “Nothing can
destroy a government more quickly than its failure to observe its
own laws.”  This suggests that the exclusionary rule remedy is
required because to make the Fourth Amendment matter, some remedy
is required. Without a remedy, the Fourth Amendment would remain,
as the Court stated, an “empty promise.” Apparently, the Court
believed that the exclusionary was the best remedy, although it
does not appear that they considered any alternatives to the
exclusionary rule. It was either the exclusionary rule or nothing.
The exclusionary rule has not been popular among the courts since
Mapp.  Indeed, many courts have been reluctant to apply it. This
disdain for the exclusionary rule, in fact, has led to many of the
exceptions to the Fourth Amendment we have now.  Judge Bowman of
the 8th Circuit articulated this disdain in a concurring opinion in
which the court unanimously held that it must exclude evidence. 
“This case vividly illustrates the perversity of the exclusionary
rule. [A]n officer’s educated hunch led to the discovery of
evidence of … criminal activity…. The ordinary law-abiding citizen
… would think the officer should be commended … and the cocaine
dealers punished.”  Instead, the court had to suppress the evidence
because the seizure occurred prior to the officer’s forming an
“objectively reasonable basis” for the seizure.  As a result, Judge
Bowman stated, “The defendants thus exit unpunished, free to
continue dealing illegal drugs…. As for the officer, far from his
being commended, it is judicially recorded that he blundered….”

People can agree or disagree with whether the exclusionary rule is
“perverse,” but what is clear is that (1) there are many judges
like Judge Bowan who will do whatever they can to avoid applying
the exclusionary rule and (2) “the ordinary law-abiding citizen”
does not like to see a criminal get off on what they consider a
“technicality.”  As Professor Amar writes, “The exclusionary rule
renders the Fourth Amendment contemptible in the eyes of judges and
citizens. Judges do not like excluding bloody knives, so they
distort doctrine, claiming the Fourth Amendment was not really
violated.”  And this results in the withering of the Fourth
Amendment.

Part of the reason is that because of the exclusionary rule, the
Fourth Amendment is primarily used in a defensive posture in a
criminal case. Ordinarily, it will be a defendant on trial for a
crime who is trying to suppress evidence that will be damaging to
his case. Very rarely, do people whose Fourth Amendment rights were
violated by a search which turned up nothing take the proactive step
and bring a case against the law enforcement agency. This results in
the courts developing the perception that the exclusionary rule is
there only to help people who actually have evidence of illegal
activity.  Or as Professor Amar writes, “Under the exclusionary
rule, the more guilty you are, the more you benefit.”   The
exclusionary rule turns these defendants into private attorneys
general, entrusted with the duty to protect the citizenry from
arbitrary and unreasonable governmental actions.  But, as Professor
Amar writes, they are “the worst kind” of private attorney general.
They are “despised by the public,” “will litigate on the worst set
of facts,” are only concerned with his case, not long term effect,
and “rarely hires the best lawyer.”

So how do we go about recruiting better private attorneys general to
litigate Fourth Amendment cases in order to bring the amendment’s
protections more in line with what the Framers’ intended?  One
method is to develop a fortified tort remedy for Fourth Amendment
violations. The fortified tort remedy would have to hold the
government entity, not the officer, liable. Of course, in order to
do that, whatever immunity the government agencies now have would
have to be abolished for the purposes of Fourth Amendment
violations. However, merely establishing a tort remedy would not be
enough of an incentive for non defendants to bring Fourth Amendment
lawsuits. And more would be needed to deter the government. Thus,
punitive damages and recovery of attorney’s fees would be needed.
Professor Amar writes that “because only a fraction of
unconstitutional searches and seizures will ever come to light for
judicial resolution, merely compensatory damages in the litigated
cases would generate systematic underdeterrence.”  The punitive
damages would therefore deter the government’s unreasonable
activity. And punitive damages in addition to the possibility of
recovering attorney’s fees would add to the incentives for
plaintiffs—good plaintiffs—to litigate Fourth Amendment claims.











Privacy--4thAmendmentPaper.doc
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