Van de Streek, Nevin

English

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North Dakota Law Review Volume 62 Number 2 Article 3 1986 A Response to the Proposed Establishment of an Administrative Agency to Create and Enforce Rules Regarding Police Conduct Nevin Van de Streek Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Van de Streek, Nevin (1986) "A Response to the Proposed Establishment of an Administrative Agency to Create and Enforce Rules Regarding Police Conduct," North Dakota Law Review: Vol. 62 : No. 2 , Article 3. Available at: https://commons.und.edu/ndlr/vol62/iss2/3 This Essay is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. A RESPONSE TO THE PROPOSED ESTABLISHMENTOF AN ADMINISTRATIVE AGENCY TO CREATE ANDENFORCE RULES REGULATING POLICE CONDUCTNEVIN VAN DE STREEK*Dear Professor Lockney:I thought you would not mind a few gratuitous reflections onyour essay concerning the fourth amendment and the exclusionaryrule, which appeared in the most recent issue of the North DakotaLaw Review. 'I understand your central thesis to be that it might be possibleto devise an administrative mechanism that would accomplish verymuch the same goals sought to be accomplished through theapplication of the exclusionary rule, thus permitting theexclusionary rule to be dismantled.2 True enough, you speak of theexclusionary rule as being modified rather than being abolished.3But if the administrative agency that you envision is able toaccomplish the three tasks you assigned to it (to formulate, to teach,and to enforce administrative rules regulating the conduct of lawenforcement officials in making arrests, Searches, and seizures),4then under your own reasoning the rule would be abolished as apractical matter, unless you intend to retain it under some*A.B. Stanford University, 1967; J.D. University of Michigan, 1970 (cum laude); partner inEaton, Van de Streek & Ward, Minot, North Dakota.1. See Lockney, An Open Letter to the North Dakota Attorney General Concerning Search and Seizure Lawand the Exclusionary Rule, 62 N.D.L. REv. 17 (1986).2. See id. at 27-33.3. See id. at 27-28.4. See id. at 28.NORTH DAKOTA LAW REVIEWcircumstances not mentioned in your essay, such as when thewrongful police conduct is flagrant and deliberate.To the extent that the exclusionary rule is intended to deterfuture official disregard of the values embodied in the fourthamendment, I concur that the proposed administrative agency mayfunction as well as, or even much better than, the exclusionaryrule. My concurrence follows from the view that the agency coulddiscipline law enforcement officials directly, by the imposition of afine or a suspension without pay, and it could do so in situations inwhich the exclusionary rule is never invoked because there is nocriminal prosecution.The proposed administrative agency is a very good idea forthose reasons alone, without regard to whatever effect its existencemight have on the exclusionary rule. But you claim greater meritfor the agency than that which I have just acknowledged. You statethat the agency rules governing arrests, searches, and seizureswould be "clearer and more detailed" and easier to administerthan the rules that courts have evolved in deciding cases arisingunder the fourth amendment.' This statement so startled andbemused me that I could not resist writing this letter. Why is thereany reason whatsoever in human experience to believe that anyadministrative agency can adopt regulations that are plainlyexpressed and easily understood? If you can cite but one example ofsuch an agency, and the regulations which it produced, can it alsofairly be claimed that the subject matter of those regulations was asinherently complex and confusing as the established doctrinesrelating to fourth amendment jurisprudence? Is there somewherean untapped pool of legal talent ready to join this administrativeagency - a talent pool that contains individuals who are able tosimplify and rationalize doctrines that have confused andconfounded extremely able lawyers, judges, legal commentators,and law school professors such as yourself?If your rejoinder is that the rules established by theadministrative agency do not have to address all the subtleties andnuances that are implicated in a typical fourth amendment courtdecision, then what do the rules address? Can you give an exampleor a skeleton outline of the rules?In your essay you pose a very interesting hypothetical case,gleaned from the facts of three different North Dakota SupremeCourt cases. 6 Under the hypothetical the following issues arise: (1)5. See id. at 30-31.6. Seeid. at 21-22.[VOL. 62:223whether probable cause existed for the issuance of a search warrant;(2) whether the officers executing the warrant properly announcedtheir presence and purpose; and (3) whether the officers improperlyexceeded the scope of the search authorized by the warrant. 7 Youuse the hypothetical quite adeptly to illustrate the convolutednature of the court-fashioned rules that seek to resolve those issues,and correspondingly, how difficult it is to teach, to learn, and toenforce the rules. But how would the administrative rules youcontemplate apply to your hypothetical, that is, how would theyguide the behavior of the officers? You are silent on that point.Indeed, it is difficult to see how the "clear" rules to beestablished by the proposed administrative agency would be ofmuch practical assistance to the law enforcement officers involvedin your hypothetical case. Presumably the administrative agencywould agree that probable cause is required to conduct a searcheven if the agency would (and constitutionally could) dispense withthe warrant requirement. But when is probable cause established?This is typically the most difficult question presented in any fourthamendment case. It is difficult not because the various verbalformulas that are used to explain what constitutes probable causeare intrinsically unclear when stated in the abstract. Rather thesevarious expressions of the probable cause test become unclear whenthey must be applied to concrete factual situations. But surely thisphenomenon is not confined to fourth amendment jurisprudence.The rule of law that one must drive an automobile with due care inview of the surrounding circumstances is easy to state and tounderstand in the abstract, but applying it to a given set of factualcircumstances can cause a jury much agony and indecision. I reallycan not perceive, and you do not tell us, how the administrativeagency's rules will simplify probable cause determinations, andthat is at least half the ballgame.Most of the other issues raised in the hypothetical relate tolimitations on the proper scope of a search, assuming that thesearch is lawful in the first instance. 8 The court rules that addressthe "knock or no knock" issues posed in your hypothetical are notnecessarily unclear, although one could argue that they areunsound as a matter of public policy. I think your suggestion that,in the ordinary case, law officers might have difficulty indetermining the actual "entrance" to a dwelling is a littlefar-fetched.9 If there is a recurring problem in that regard, how willit be resolved by the administrative rules?7. See id. at 23-26.8. See id. at 24.9. See id.1986] RESPONSE 225NORTH DAKOTA LAW REVIEWThe court rules relating to the "plain view" issues embeddedin the hypothetical are admittedly much more confusing. Withrespect to these issues the administrative agency has a very fairchance of writing simpler and clearer rules than those derived fromcourt opinions on the subject. But I feel it is revealing to examinewhy the plain view cases are so muddled, because the resultinganalysis discloses an important problem that you recognize, butwhich you tend to gloss over.The confusion that abounds in the particular context of theplain view doctrine (and in the general context of fourthamendment law) results not solely because the courts are bendingover backwards to ensnare criminal defendants, but also becausethe courts are swaying the other way to protect privacy rights. If thecourts had no concern about privacy rights they could eliminatemost issues arising under the plain view doctrine by simply holdingthat the search and seizure of any object in the course of executing asearch warrant is lawful provided the officer does not pry into anarea in which it would be objectively unreasonable for him toexpect to find those items that are the object of the search. Thus anofficer armed with a warrant to search for and to seize a stolentwenty-one inch television set could not look into a shoe box. To theextent that courts have been hesitant to adopt the rule justsuggested, they are motivated by privacy concerns rather than byconcerns that the exclusionary rule is improperly protectingcriminals. In an effort to protect the privacy of the citizenry ingeneral, courts have developed limitations on the plain viewdoctrine; for example, the discovery of evidence not contemplatedwithin the warrant must be inadvertent. 10 Unfortunately, as younote, this fine tuning of the doctrine makes the entire conceptcomplicated and confusing.All of this indicates that, whether an administrative agency orthe courts make the rules, the rules will be unclear, complex, andcontradictory as long as a sincere effort is made to balance privacyinterests against the desire to capture and punish criminals. Theonly way I see out of this dilemma is if the administrative agencydecided that it would not attempt to hold the balance true, as thecourts now endeavor to do, but instead decided to tip the scaleseither in favor of law enforcement goals or in favor of thepreservation of privacy interests. If it did the first, then it would bedifficult to argue that the federal courts should limit or abolish the10. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 469 (1971) (the plain view doctrine islimited by the principle that the discovery of evidence must be inadvertent).226 [VOL. 62:223RESPONSEexclusionary rule in North Dakota, for surely you intend that therules pay deference to the fourth amendment. If the agency chosethe second course of action, favoring privacy interests over lawenforcement goals, it would probably be killed by the legislatureeven before it could be added to the federal list of endangeredspecies.I do not contend that greater simplicity and clarity in fourthamendment law is undesirable and unattainable. To the contrary, Imaintain that three recent developments mark a trend toward thesimplification of fourth amendment jurisprudence. This trend isnot attributable, however, to any administrative action. Rather,the praise or blame for the trend must be directed to the courtsthemselves. You mention some or all of these developments in youressay, yet you fail to give them proper emphasis; for if the trend ofwhich they are a part is developed sufficiently, the exclusionary rulewill become nearly obsolete. These developments are: (1) thedilution of probable cause standards; (2) the forgiveness of "goodfaith" violations of the fourth amendment; and (3) the creation of"bright line" parameters defining the scope of an authorizedsearch.According to Illinois v. Gates,11 a search warrant may be issuedif there is a substantial chance that the search will produce evidence ofcriminal wrongdoing.12  I emphasize the words "substantialchance" because those are the words of the Court at one point inthe opinion. 3 I think it is but a short step from the "substantialchance" standard to a standard of probable cause which states, ineffect, that as long as the law enforcement officers are not searchingat random or on a whim the fourth amendment is satisfied. Thereasoning would be that if a search is conducted on some randomselection basis, or upon a hunch, then there is not a substantialchance that evidence of criminal activity will be discovered.Conversely, if the officer can demonstrate to the magistrate'ssatisfaction that the selection of a particular property for a search isbased on something other than random selection or whim, then itfollows that the substantial chance test is met. In other words, Gatesmay instruct us that it is old fashioned to think of separate conceptsof "reasonable suspicion" and "probable cause," and that thelatter is being merged into the former.Not only has the United States Supreme Court seriously11. 462 U.S. 213 (1983).12. Illinois v. Gates, 462 U.S. 213, 243 n. 13 (1984) (emphasis added).13. Id. In the words of the Court: "[P]robable cause requires only a probability or substantialchance of criminal activity, not an actual showing of such activity." Id.1986] 227228 NORTH DAKOTA LAw REVIEW [VOL. 62:223diluted the probable cause test, but the Court has gone on to holdthat even if the magistrate makes an error in judgment under theGates standard of probable cause, the evidence seized pursuant tothe magistrate's authorization may be used in criminal proceedingsprovided the officer executing the warrant had an objective, goodfaith belief that the magistrate acted properly in issuing thewarrant. 14 The Court has not yet decided whether the "good faithexception" to the exclusionary rule should be extended towarrantless searches, but Mr. Justice White's concurring opinionin Gates indicates that he is willing to take that step. 5 He seems tobelieve that the fruits of a warrantless search should not necessarilybe excluded merely because the officer mistakenly believed thatthere was probable cause to make the warrantless search, but ratherhe would trigger the exclusionary rule only if the officer wasunreasonably mistaken in believing that probable cause to conduct awarrantless search existed. 16Finally, New York v. Belton 7 and United States v. RosS' 8 bothseem to foreshadow an ultimate holding by the Supreme Court that14. See United States v. Leon, 468 U.S. 897, 926(1984).15. See Gates, 462 U.S. 213, 246 (White,J., concurring).16. See id. at 259, n. 14. Justice White, in Gates, stated as follows:But the question of exclusion must be viewed through a different lens when a FourthAmendment violation occurs because the police have reasonably erred in assessing thefacts, mistakenly conducted a search under a presumably valid statute, or relied ingood faith upon a warrant not supported by probable cause.Id.17. 453 U.S. 454 (1981). The defendant in Belton had been a passenger in an automobile stoppedby police for speeding. United States v. Belton, 453 U.S. 454, 455 (1981). The defendant, and otherpassengers, were removed from the automobile and placed under arrest for possession-of marijuana.Id. at 456. Thereafter the arresting officer searched the passenger compartment of the automobile.Id. In the course of the search, the officer discovered cocaine in the zipped pocket of the defendant'sjacket, which was laying in the back seat of the car. Id. The defendant moved to suppress the seizedcocaine, arguing that it was obtained in violation of the fourth and fourteenth amendments. Id. Thetrial court denied the defendant's motion. Id. On appeal, the United States Supreme Court upheldthe validity of the search concluding that the search of the automobile was a legitimate searchincident to arrest. Id. at 460. Since the search of the automobile was legitimate, the Court concludedthat "[i]t follows . . . that the police may also examine the contents of any containers found withinthe passenger compartment."18. 456 U.S. 798 (1982). The defendant in Ross had been arrested after police stopped hisautomobile and discovered a bullet and gun in the car's interior. United States v. Ross, 456 U.S.798, 801 (1982). The police also suspected that the defendant was selling drugs. See id. at 800. Afterplacing the defendant under arrest, the police opened the car's trunk. Id. at 801. Inside theyobserved a brown paper bag. Id. The police opened the bag and "discovered a number of glassinebags containing a white powder." Id. The powder proved to be heroin. Id. Prior to his trial, Rossmoved to suppress the heroin found in the paper bag. Id. The trial court denied his motion and Rosswas convicted. Id. On appeal, the United States Supreme Court upheld the warrantless search andseizure of the container found in the trunk of Ross' automobile. See id. at 825. In reaching thisconclusion, the Court stated as follows:The scope of a warrantless search of an automobile thus is not defined by thenature of the container in which the contraband is secreted. Rather, it is defined by theobject of the search and the places in which there is probable cause to believe that itmay be found.Id. at 824.RESPONSEthe scope of a search, whether based upon a warrant or not, islimited only by the principle that law enforcement officers may notlook into a thing or a place that obviously could not contain theobject of the search. Such a holding would eliminate the"inadvertence" component of the plain view doctrine becausepolice could seize all evidence in plain view provided the evidencewas "discovered" while searching containers that could havecontained the object of the search.The foregoing developments support my assertion that it ispossible to make simpler rules in the fourth amendment context,but only at the price of paying much greater homage to lawenforcement concerns, or to privacy concerns, but not to both.Because the Supreme Court has apparently decided to makeprivacy subservient to law enforcement, the occasions for invokingthe exclusionary rule may become fewer and fewer. Consequently,it is my conclusion that if there is a case to be made in favor of theadministrative agency you propose, it must rest, to a very largeextent, on grounds other than dissatisfaction with the operation andeffect of the exclusionary rule.1986]

A Response to the Proposed Establishment of an Administrative Agency to Create and Enforce Rules Regarding Police Conduct

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A Response to the Proposed Establishment of an Administrative Agency to Create and Enforce Rules Regarding Police Conduct

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