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February 6, 2012

A Fourth Amendment perspective on the virtues of reasonableness review

One of the most interesting and disappointing aspects of the post-Booker sentencing world has been the struggles that federal appellate courts have had giving sensible content to reasonableness review of sentences under the Sentencing Reform Act.  For this reason (and others), I always find intriguing any modern thoughtful discussion of the forms of reasonableness review of police practices under the Fourth Amendment.

My OSU colleague Professor Peter Swire has this very timely piece on this very topic now appearing in the Stanford Law Review Online. The piece is headlined "A Reasonableness Approach to Searches After the Jones GPS Tracking Case," and here is how it starts:  

In the oral argument this fall in United States v. Jones, several Supreme Court Justices struggled with the government’s view that it can place Global Positioning System (GPS) tracking devices on cars without a warrant or other Fourth Amendment limit.  Chief Justice Roberts asked: “You think there would also not be a search if you put a GPS device on all of [the Justices’] cars, monitored our movements for a month?” (The lawyer for the government said yes.)  Justice Breyer remarked: “[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” He added: “[I]f you win, you suddenly produce what sounds like 1984 . . . .”

Perhaps not surprisingly in light of these questions, on January 23, the Supreme Court voted unanimously that, given the circumstances presented in the case, a search had indeed occurred.  The Justices split badly, however, on their reasoning.  Five Justices held that it was the physical attachment of the device to the car that constituted a search under the Fourth Amendment.  Four Justices concurred in the judgment, finding instead that it was a search because it violated the defendant’s reasonable expectation of privacy.

The split in the Court revealed ongoing uncertainty about the broader questions raised in the Jones argument — particularly regarding how “to prevent the police or the government from monitoring 24 hours a day.”  Jones could be decided narrowly because the case involved a physical intrusion of a defendant’s car.  Much of modern surveillance, however, occurs without any similar type of physical intrusion.  The unanswered questions from the Jones argument thus suggest that the Court is seeking a new, as-yet unarticulated way to constrain police and government discretion to conduct unprecedented surveillance.

The proposal here is that the answer lies in addressing what the Supreme Court in Delaware v. Prouse called “standardless and unconstrained discretion,” and what Justice Sotomayor called “unfettered discretion” in her concurrence in Jones.  Supreme Court precedent contains powerful methods for limiting this sort of discretion, primarily in the second step of Fourth Amendment analysis.  The first step, and the focus of the dueling opinions in Jones, concerns the definition of what constitutes a “search or seizure.”  The second step, once a “search or seizure” exists, is to define its reasonableness.  The thesis here is that the reasonableness doctrine offers the best opportunity to respond to the Justices’ concern about unconstrained discretion in high-tech searches.  Longstanding precedents under this doctrine require “minimization” of intrusive surveillance and procedural checks against standardless or discriminatory surveillance.

February 6, 2012 at 10:43 AM | Permalink


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Law students are taught that "reasonableness" is an objective standard. To me, that always seemed an absurd notion. If it were possible to determine what's reasonable, without resorting to one's own sensibilities and, dare I say it, prejudices, then we wouldn't have so much consternation about sentencing disparities. How else can one judge find that probation is an appropriate sentence for a possessor of child pornography while another would scoff at the notion of a non-custodial sentence.

What if most people disagree with the federal court--does that make a few federal judges especially perceptive, while the rest of us labor in ignorance? For instance, I would be willing to bet that the vast majority of people would think it unreasonable that the police can pull anyone over on a pretext, ask to "check" their car, and then virtually dismantle the vehicle in a search for contraband, even if they have no reason to believe they will find any. Yet this is considered "reasonable" by the federal courts.

Anyway, to me the search for reasonableness is like Diogenes' search for an honest man. Maybe it would be better to start searching for something else.

Posted by: C.E. | Feb 6, 2012 11:29:48 PM

I am a criminal defense attorney.

Regarding the lead-in to this piece, and then the excerpt from the piece itself, I fail to see a connection between "reasonableness" in a post-Booker regime and "reasonableness" of police action in the search and seizure context. In the latter context, it has long been held that warrantless searches are per se unreasonable, unless there is an exception that can be invoked, exceptions that have given rise to extensive -- to say the least -- case authority.

In the context of Booker, I wish that someone (other than me) would say that "reasonableness" is like the emperor's new clothes. It's a fig leaf to conceal the absence of any meaningful standard, and efforts to transpose the search and seizure concept of reasonableness into the sentencing area are not going to be meaningful.

Posted by: Al Bentley | Feb 7, 2012 4:06:13 PM

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