NEGATIVE - SEARCH AND SEIZURE

NEGATIVE - SEARCH AND SEIZURE — DISADVANTAGE 442

PRIVACY APPROACH TO SEARCH AND SEIZURE WOULD DECREASE POLICE EFFORTS TO FIGHT CRIME

IF POLICE MUST ACCORD MORE PRIVACY IN SEARCHES, THERE WILL BE LITTLE LAW ENFORCEMENT AT ALL

WILLIAM J. STUNTZ , Visiting Professor, Yale Law School; SYMPOSIUM: Justice and the Criminal Justice System, The Fifteenth Annual National Student Federalist Society Symposium on Law and Public Policy -- 1996: PANEL III: WHAT BELONGS IN A CRIMINAL TRIAL: THE ROLE OF EXCLUSIONARY RULES: THE VIRTUES AND VICES OF THE EXCLUSIONARY RULE , Harvard Journal of Law & Public Policy , 20 Harv. J.L. & Pub. Pol'y 443 , Winter, 1997 , EE2001-JGM, P.

Start with the assumption that Fourth Amendment law makes sense, that the sole question on the table is how that law should be enforced. Right away, one runs into a pair of practical problems that make the crafting of remedies unusually difficult. Typically, illegal conduct and good conduct are far removed from one another. Behavior is often arrayed along a spectrum, from awful to bad to questionable to good to wonderful, and the line defining illegality is drawn somewhere around bad. Where that is so, the details of the line and its enforcement may not matter much: if the law mistakenly deters some questionable conduct, so what? Police investigation is different. There, the gap between good behavior and illegal behavior can be vanishingly small. The police not only are allowed to search people's homes and cars and briefcases for evidence; doing so is often a good thing. And it can be a good thing even though the officer doing the searching is far from positive that the search will yield evidence -- especially where the crime in question is very serious. Our society will have too little law enforcement if the police always wait to search or arrest until they are certain that their suspicions are justified. It follows that a search based on (just barely) probable cause may be commendable even while a search that misses the probable cause line by a hair is unconstitutional. n1 Enforcing any legal line that slices so finely is likely to be hard.

FINES FOR POLICE ABUSE WON'T INCREASE PRIVACY. THEY JUST LEAD TO LESS POLICE AND MORE CRIME

The temptation is to solve this problem by making the government, rather than the individual police officer, bear the immediate costs of legal liability. Unfortunately, that move solves nothing. Most police work for local governments, and most local governments operate under serious budget constraints. The effect of governmental damages liability for police misconduct mimics the effect of making individual officers pay damages: the locality has an incentive to reduce its liability by reducing the level of policing. And police work is redistributive. Because crime tends to be concentrated in poor neighborhoods, the people who get the biggest benefits from police work do not pay the biggest tax bills. So the government cannot respond to a rise in the cost of police services (which is what broader damages liability means) by charging the beneficiaries of those services more. Just as a government faced with large damages liability for running a municipal pool, which serves poor residents but is paid for by rich ones, may simply close the pool, a government faced with large damages liability for the police may simply reduce the police presence in areas likeliest to give rise to lawsuits. This is overdeterrence writ large.

AN ABSOLUTE RIGHT TO PRIVACY WOULD MAKE CRIMINAL LAW ENFORCEMENT AND CIVIL REGULATION IMPOSSIBLE

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1030-1

If one starts with this definition of private, protecting private information outside the criminal context would have huge substantive effects, especially if the information is protected absolutely - without any provision for disclosure in response to a showing of relevance or need or cause. Some criminal litigation may not depend on compelled disclosure of private material. In an ordinary robbery case, all the testimony may be consensual and all the physical evidence may have been gathered with the cooperation of the victim. But in any system that seeks to do more than pro forma regulation of business or finance or that tries to police the distribution of guns or drugs, absolute protection of private information is unacceptable unless private is defined so narrowly as to make the enterprise pointless. Much criminal law enforcement, and an even larger category of civil regulation, would be impossible. The short-lived regime of Boyd v. United States n55 illustrates this proposition. Boyd held, basically, that the government could not obtain documents in the possession of their legitimate owner - not through search and seizure, not through subpoena, not through the testimony of the documents' owner. n56 All routes were barred: the documents were absolutely protected by the Fourth and Fifth Amendments. The year after Boyd was decided, Congress passed the Interstate Commerce Act. n57 Antitrust and bankruptcy legislation followed shortly thereafter. n58 Before long, railroad officials were raising constitutional objections to ICC investigations, n59 debt- [*1031] ors were seeking to bar production of documents in bankruptcy proceedings, n60 and antitrust violators were trying to use the privilege to shield themselves from liability. n61 The Supreme Court shortly concluded that if it took Boyd seriously, government regulation would be impossible. n62 That was the beginning of the end of Boyd. The Court created a series of arbitrary "outs" from the protection, sometimes explicitly acknowledging that it was doing so in order to avoid disabling the government from pursuing various kinds of socially useful regulation. n63

PRIVACY CONCERNS HAVE CREATED A PROBLEM FOR CRIMINAL PROCEDURE

William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1017

To put it differently, a substantive problem lies at the heart of criminal procedure: the law is grounded on the protection of a particular value, privacy, that implies aggressive substantive judicial review of a sort that we have not allowed for the past half-century. Privacy, at least as the word is used in criminal procedure, protects the interest in keeping information out of the government's hands, and information is necessary to both criminal law enforcement (where aggressive constitutional law is thought to be good) and ordinary regulation (where it is mostly thought to be bad). Criminal procedure, or at least privacy-based criminal procedure, thus has a good deal more substantive bite than we tend to suppose, and its substantive implications push in some uncomfortable directions.