Solving the Pretext Puzzle: The Importance of Ulterior Motives and Fabrications in the Supreme Court\u27s Fourth Amendment Pretext Doctrine

This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court\u27s definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court\u27s definition includes both legal and fabricated pretexts. In a legal pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification that is not the true reason for the police activity and, in fact, is legally insufficient because it is not supported by the facts. This Article argues that although fabricated pretexts should be struck down on a case-by-case basis, a pretext doctrine that strikes down legal pretexts on a case-by-case basis based on the motivation of the officer is misguided. This Article demonstrates that the true evil of the pretext case is the virtually unlimited authority of police officers to arrest and search based on minor offenses. Thus, an approach that declares legal pretexts constitutional but re-examines the underlying authority of police officers to arrest and search based on a minor offense, offers the better solution to the pretext problem.\u27\u2

Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins

This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual\u27s actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual\u27s rights by failing to consider the purpose of the encounter. Next, the Article will examine the cases in which the Supreme Court has used the Mendenhall-Royer test. These cases serve as further illustrations both of the difficulty in applying the test and of the lack of guidance the Supreme Court has provided. The Article then will explore the results of this lack of guidance by examining the confusion lower courts are experiencing in deciding cases using the Mendenhall-Royer standard. Finally, the Article will examine possible alternatives to the Mendenhall-Royer test. It will show that some of these alternatives have been rejected without careful consideration, by overstating the perceived drawbacks to such tests and placing unfounded confidence in the courts\u27 ability to modify\u27 the Mendenhall-Royer test to yield appropriate results. The Article concludes that a per se rule based on the purpose for which a police officer initiates the encounter, although rejected by courts and commentators, is necessary. Such a test provides the appropriate balance between the liberty interest of citizens and the crime fighting interest of the state and is justified by experience with the Mendenhall-Royer test

Part-Time Legal Education: It‘s Not Your Parents’ Old Oldsmobile

When I am asked to name my accomplishments as dean,\u27 the one that often piques the listener\u27s interest is starting a weekend law program. Their reaction usually is along the lines of, A weekend law program? That\u27s different. But depending on to whom I am talking, that uniform response needs to be interpreted based on the tone of voice, facial expression, and other body language of the listener If I happen to be talking to a faculty member from another school, the translation is, I hope my dean doesn\u27t get a crazy idea like that and make me work on weekends. The translation if I am talking with a dean from a similarly situated law school is, Does it generate significant revenue 9 And how on earth did you get the faculty to agree to work on weekends and the ABA to approve the program. If the dean I am talking with is from an elite law school, the translation is more along the lines of, And you pretend to be a real law school? Practicing attorneys react along the same lines as deans. Lawyers at large, traditional law firms (who likely graduated from an elite law school) think much like their dean. If I happen to be talking to a lawyer who graduated from an evening program, they immediately start analyzing whether weekends would have been a better alternative than the evening program they attended. These varied reactions illustrate the range of issues raised by the prospect of starting a weekend law program. The weekend program at Hamline is one of the main initiatives identified with my time as dean. As we prepare to welcome our third class of weekend law students this fall, I feel comfortable that more credit than blame has come my way as the result of proposing and implementing the weekend program.2 While it would be an exaggeration to call the program an unqualified success, it certainly has been a success. In this brief essay, I will explore why a law school might want to start a weekend law program and some of the philosophic, strategic and practical issues a school will face in doing so

Solving the Pretext Puzzle: The Importance of Ulterior Motives and Fabrications in the Supreme Court\u27s Fourth Amendment Pretext Doctrine

This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court\u27s definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court\u27s definition includes both legal and fabricated pretexts. In a legal pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification that is not the true reason for the police activity and, in fact, is legally insufficient because it is not supported by the facts. This Article argues that although fabricated pretexts should be struck down on a case-by-case basis, a pretext doctrine that strikes down legal pretexts on a case-by-case basis based on the motivation of the officer is misguided. This Article demonstrates that the true evil of the pretext case is the virtually unlimited authority of police officers to arrest and search based on minor offenses. Thus, an approach that declares legal pretexts constitutional but re-examines the underlying authority of police officers to arrest and search based on a minor offense, offers the better solution to the pretext problem.\u27\u2

Part-Time Legal Education: It‘s Not Your Parents’ Old Oldsmobile

When I am asked to name my accomplishments as dean,\u27 the one that often piques the listener\u27s interest is starting a weekend law program. Their reaction usually is along the lines of, A weekend law program? That\u27s different. But depending on to whom I am talking, that uniform response needs to be interpreted based on the tone of voice, facial expression, and other body language of the listener If I happen to be talking to a faculty member from another school, the translation is, I hope my dean doesn\u27t get a crazy idea like that and make me work on weekends. The translation if I am talking with a dean from a similarly situated law school is, Does it generate significant revenue 9 And how on earth did you get the faculty to agree to work on weekends and the ABA to approve the program. If the dean I am talking with is from an elite law school, the translation is more along the lines of, And you pretend to be a real law school? Practicing attorneys react along the same lines as deans. Lawyers at large, traditional law firms (who likely graduated from an elite law school) think much like their dean. If I happen to be talking to a lawyer who graduated from an evening program, they immediately start analyzing whether weekends would have been a better alternative than the evening program they attended. These varied reactions illustrate the range of issues raised by the prospect of starting a weekend law program. The weekend program at Hamline is one of the main initiatives identified with my time as dean. As we prepare to welcome our third class of weekend law students this fall, I feel comfortable that more credit than blame has come my way as the result of proposing and implementing the weekend program.2 While it would be an exaggeration to call the program an unqualified success, it certainly has been a success. In this brief essay, I will explore why a law school might want to start a weekend law program and some of the philosophic, strategic and practical issues a school will face in doing so

A Suspicionless Search and Seizure Quagmire: The Supreme Court Revives the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess

This Article contends the Supreme Court\u27s use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas or activities, the Court has taken the indirect route of applying the primary purpose test, a test that is difficult to apply and will enjoy no more success than it did when proposed as a limit on pretextual activity by the government in other settings. The Court-and citizens and law enforcement officials-would be better served by focusing on the privacy interest infringed upon by the government activity and whether the government scheme includes appropriate safeguards against arbitrary actions by government officials rather than the primary purpose of the scheme

Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins

This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual\u27s actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual\u27s rights by failing to consider the purpose of the encounter. Next, the Article will examine the cases in which the Supreme Court has used the Mendenhall-Royer test. These cases serve as further illustrations both of the difficulty in applying the test and of the lack of guidance the Supreme Court has provided. The Article then will explore the results of this lack of guidance by examining the confusion lower courts are experiencing in deciding cases using the Mendenhall-Royer standard. Finally, the Article will examine possible alternatives to the Mendenhall-Royer test. It will show that some of these alternatives have been rejected without careful consideration, by overstating the perceived drawbacks to such tests and placing unfounded confidence in the courts\u27 ability to modify\u27 the Mendenhall-Royer test to yield appropriate results. The Article concludes that a per se rule based on the purpose for which a police officer initiates the encounter, although rejected by courts and commentators, is necessary. Such a test provides the appropriate balance between the liberty interest of citizens and the crime fighting interest of the state and is justified by experience with the Mendenhall-Royer test

Extending the Guiding Lefthand of Counsel: The Minnesota Supreme Court Provides Protection against Uncounseled Waivers of the Right to Counsel During Interrogations

It is the thesis of this Article that the cases on which the Minnesota Supreme Court in Lefthand relied and the policy concerns that motivated the court suggest that the rule of Lefthand should apply to any suspect who has asserted her right to counsel, regardless of whether that suspect is in custody, formally charged, or formally represented by counsel. If the court\u27s ruling in Lefthand is carried to its logical scope, law enforcement officers and prosecutors in Minnesota may find that very early in the criminal justice process they are precluded from obtaining waivers of the right to counsel from suspects in order to obtain a statement, unless the suspect\u27s attorney is present or has been notified prior to any interrogation. This Article first briefly reviews the current law regarding right to counsel under the Fifth and Sixth Amendments to the United States Constitution. It demonstrates that in the factual setting of the Lefthand case and similar cases, these federal rights are not violated when the police obtain a waiver of the right to counsel from the suspect without counsel being present or having been notified, and subsequent statements are admissible under federal law. This Article then examines the right to counsel provided suspects under Minnesota state law. In particular, the Article focuses on the Lefthand case and the cases to which the Lefthand court referred as giving notice of our \u27strong[] disapprov[al]\u27 of the practice engaged in by the government. The Article argues that these cases, especially when read in the context of the Minnesota Supreme Court\u27s history of jealously guard[ing] the right to counsel, require the court to apply the right recognized in Lefthand to all suspects who have asserted their right to counsel, regardless of whether they are within the narrow fact situation at issue in Lefthand.s As demonstrated below, such a rule is necessary to protect adequately the right to counsel so highly valued by the Minnesota Supreme Court