SmarterthanYou
rebel
http://www.law.com/jsp/nlj/PubArtic...The_Court_and_the_Fourth_Amendment&slreturn=1
I long have believed that the best predictor of whether the U.S. Supreme Court finds a violation of the Fourth Amendment is whether the justices could imagine it happening to them. For example, the Supreme Court upheld drug-testing requirements in every case until it considered a Georgia law that required that high-level government officials be subjected to it. The two Fourth Amendment decisions this term, U.S. v. Jones and Florence v. Board of Chosen Freeholders of Burlington County, powerfully illustrate that the justices only seem to care if it could happen to them.
In Jones, the Supreme Court considered whether the police placing a GPS device on a person's car and tracking its movements was a violation of the Fourth Amendment when there was not a warrant authorizing this. I was confident in predicting the outcome when a justice at oral argument asked the government lawyer whether the government's position meant that a police officer could put a GPS device on a justice's car and track its movements. Another justice asked if it meant that a police officer could slip a GPS device into his pocket without a warrant.
The Supreme Court ruled, 9-0, that placing the GPS device on Antoine Jones' car and tracking its movements for 28 days without a warrant violated the Fourth Amendment. But the Court's approach was remarkably unhelpful in dealing with issues of technological surveillance and the Fourth Amendment.
By contrast, the Court's recent decision in Florence v. Board of Chosen Freeholders of Burlington County shows the justices' insensitivity when it isn't something that they are likely to experience. Albert Florence was arrested by mistake and taken to a local jail. Burlington County, N.J., jail procedures required every arrestee to shower with a delousing agent. Florence was instructed to open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals.
After six days, Florence was taken to another facility where, without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits and other body openings. This policy applied regardless of the circumstances of the arrest, the suspected offense or the detainee's behavior, demeanor or criminal history. Florence said that he was required to lift his genitals, turn around, and cough in a squatting position as part of the process. Florence was released the next day, when the charges against him were dismissed.
The issue before the Supreme Court was whether the police must have reasonable suspicion before subjecting a person arrested for a minor offense to a strip search. In a 5-4 decision, with Kennedy writing an opinion joined by Roberts, Scalia, Thomas and Alito, the Court held that routine strip searches of all taken to jail do not violate the Fourth Amendment.
It is hard to avoid the conclusion that the justices would have a very different view if they could have imagined that they would have been subjected to such searches.
Perhaps such subjectivity is inevitable under the Fourth Amendment, which requires that courts decide what is "reasonable." But shouldn't we expect more of justices than was evident in these two cases? The Court must provide an approach for applying the Fourth Amendment to technological surveillance, and the answer is not going to be found in English precedents from 1765. And the Court should require some suspicion before a person arrested for a minor offense is subjected to a body-cavity inspection that is profoundly humiliating. A violation of the Fourth Amendment should not depend on whether the justices could imagine it happening to them.
I long have believed that the best predictor of whether the U.S. Supreme Court finds a violation of the Fourth Amendment is whether the justices could imagine it happening to them. For example, the Supreme Court upheld drug-testing requirements in every case until it considered a Georgia law that required that high-level government officials be subjected to it. The two Fourth Amendment decisions this term, U.S. v. Jones and Florence v. Board of Chosen Freeholders of Burlington County, powerfully illustrate that the justices only seem to care if it could happen to them.
In Jones, the Supreme Court considered whether the police placing a GPS device on a person's car and tracking its movements was a violation of the Fourth Amendment when there was not a warrant authorizing this. I was confident in predicting the outcome when a justice at oral argument asked the government lawyer whether the government's position meant that a police officer could put a GPS device on a justice's car and track its movements. Another justice asked if it meant that a police officer could slip a GPS device into his pocket without a warrant.
The Supreme Court ruled, 9-0, that placing the GPS device on Antoine Jones' car and tracking its movements for 28 days without a warrant violated the Fourth Amendment. But the Court's approach was remarkably unhelpful in dealing with issues of technological surveillance and the Fourth Amendment.
By contrast, the Court's recent decision in Florence v. Board of Chosen Freeholders of Burlington County shows the justices' insensitivity when it isn't something that they are likely to experience. Albert Florence was arrested by mistake and taken to a local jail. Burlington County, N.J., jail procedures required every arrestee to shower with a delousing agent. Florence was instructed to open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals.
After six days, Florence was taken to another facility where, without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits and other body openings. This policy applied regardless of the circumstances of the arrest, the suspected offense or the detainee's behavior, demeanor or criminal history. Florence said that he was required to lift his genitals, turn around, and cough in a squatting position as part of the process. Florence was released the next day, when the charges against him were dismissed.
The issue before the Supreme Court was whether the police must have reasonable suspicion before subjecting a person arrested for a minor offense to a strip search. In a 5-4 decision, with Kennedy writing an opinion joined by Roberts, Scalia, Thomas and Alito, the Court held that routine strip searches of all taken to jail do not violate the Fourth Amendment.
It is hard to avoid the conclusion that the justices would have a very different view if they could have imagined that they would have been subjected to such searches.
Perhaps such subjectivity is inevitable under the Fourth Amendment, which requires that courts decide what is "reasonable." But shouldn't we expect more of justices than was evident in these two cases? The Court must provide an approach for applying the Fourth Amendment to technological surveillance, and the answer is not going to be found in English precedents from 1765. And the Court should require some suspicion before a person arrested for a minor offense is subjected to a body-cavity inspection that is profoundly humiliating. A violation of the Fourth Amendment should not depend on whether the justices could imagine it happening to them.