Binary Searches and the Central Meaning of the Fourth Amendment

Fourth Amendment jurisprudence is frequently accused of doctrinal incoherence. A primary reason is the persistence of two competing conceptions of “unreasonable” search and seizure. The first is libertarian in character; it understands the Fourth Amendment’s command of reasonableness as establishing a constitutional boundary on investigative powers. On this view, the prohibition on unreasonable search and seizure keeps society free by limiting the government’s investigative reach. The second conception understands the Fourth Amendment\u27s prohibition as freedom against unjustified government intrusion. This conception of reasonableness is essentially pragmatic in character, balancing liberty and law-enforcement interests. This article interrogates these competing conceptions by focusing whether a “binary search” should be regarded as unreasonable under the Fourth Amendment. Binary search techniques reveal no more than whether there is probable cause to believe that an otherwise concealed area contains contraband or other evidence of criminality. In a binary search, the competing conceptions of the Fourth Amendment point toward different outcomes. On the libertarian conception, the Fourth Amendment would regard as unreasonable an effectively unlimited power to scrutinize otherwise private space through binary techniques. A libertarian Fourth Amendment demands limitations on binary searches. On the pragmatic conception, a binary search that discloses nothing more than the probable presence of contraband is supported by powerful law-enforcement interests, and is unlikely to threaten any legitimate liberty interest of the innocent. Therefore, it could readily be regarded as constitutionally reasonable even if unsupported by individualized suspicion of wrongdoing. As technology advances, the binary search will become increasingly important, as increasingly sophisticated and focused technologies are developed that can precisely target the presence of contraband or other evidence of criminality in both real and cyberspace. In last Term\u27s decision in Florida v. Jardines, the Court considered a type of binary search – the use of a trained narcotics-detection dog. In Jardines, a bare majority embraced the libertarian conception. Writing that “[a]t the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” the Court held that “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a search within the meaning of the Fourth Amendment.” Jardines’s libertarianism, however, is stunted and incomplete. The Court’s holding can be readily circumvented by investigative techniques that stop short of a physical intrusion, and might even leave binary searches unrestricted if they are ultimately deemed constitutionally reasonable, even if considered a “search.” Indeed, given our current understanding of the scope of governmental regulatory power, the binary search demonstrates the absence of a coherent Fourth Amendment libertarianism. Searches with no potential to compromise the interests of the innocent – such as a binary search – are constitutionally unobjectionable in a regime that recognizes no legitimate interest in even the entirely “private” possession of items that the government may deem unlawful to possess. Thus, the persistence of the libertarian conception comes with the inevitable cost of a loss of conceptual coherence. Moving beyond the particulars of the binary-search debate, this article concludes that although the pragmatic conception leaves plenty of room for debate over the proper scope of investigative authority, only the pragmatic conception has any real power to rationalize Fourth Amendment jurisprudence, especially as it faces unparalleled challenges as a consequence of technological advance

Originalism and Parking Tickets

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution\u27s open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered due at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures\u27 that alter framing-era procedural rights, such as the novel systems for administrative adjudication of parking ticket cases now used in many municipalities that this article uses as an example of the problems that inhere in an originalist account of procedural due process. Nevertheless, it seems to have gone unnoticed that in jurisprudence and scholarship about procedural due process, originalism is nearly entirely absent. The Constitution twice forbids deprivation of life, liberty, or property without due process of law, but originalists have been unable to develop an account of what type of process should be considered “due” based on a framing-era understanding of due process. Their failure has important implications for originalism as a method of constitutional interpretation. This paper argues that the objections to the view that the two Due Process Clauses forbid procedural innovation subsequent to their ratification are more than consequentialist -- they are originalist as well. An inquiry into the original understanding of due process shows that the original meaning of these constitutional provisions – and perhaps many others – was of an evolutionary and common law character. This article considers the original understanding of procedural due process, and demonstrates that by the time of the Fourteenth Amendment’s Due Process Clause was ratified, the Supreme Court had decisively rejected the understanding of due process contained in the law of England, which had afforded nearly absolute deference to legislative innovation, but had replaced it with no clear or coherent account. As of 1868, due process operated not as a fixed set of rules – the meaning of due process at the time of the framing was too amorphous to support that view – but instead to delegate to the judiciary responsibility for countermajoritarian oversight of the manner in which persons are deprived of life, liberty, or property. This evolutionary and common-law conception of due process is consistent with the evolutionary character of civil and criminal procedure up until the adoption of the Due Process Clause, as well as the tradition of common law constitutional adjudication that had taken firm root by 1868. In short, the original meaning of the Due Process Clause was nonoriginalist. This account has implications for substantive due process as well. If the concept of due process was intended to evolve through common law adjudication, surely that was equally true for its procedural and substantive components. Indeed, the original meaning of much of the Constitution may be nonoriginalist

Policing and Equal Protection

For urban policing, it is the best of times and the worst of times. The innovative policing techniques that have come into widespread use over the past decade are credited by many with producing significant reductions in urban crime. The vocal and numerous critics of these tactics, however, claim that the cure has been worse than the disease

Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs. This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace prophylactic rules excluding evidence thought to present unduly high risks of convicting the innocent. The case for reform is rooted in Blackstone’s admonition that the law should be wary of admitting evidence of guilt, preferring erroneous acquittals to wrongful convictions. It is difficult, however, to construct a Blackstonian case for the exclusion of evidence thought to be unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this Article considers an issue on which the lower courts have split—the role of corroborative evidence in assessing the admissibility of an eyewitness’s identification. Although Blackstonian prophylactic rules reject the consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court’s decisions on eyewitness identification, are about the best we can do—as prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic