The Distribution of Fourth Amendment Privacy

George Washington Law Review

Volumn 67, Issue 5-6, 1999, Pages 1265-1289

  Stuntz, William J ^a  

^a NONE

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EID: 0033261214     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (92)

1. See, e.g., United States v. Knotts, 460 U.S. 276 (1983).
2. See Terry v. Ohio, 392 U.S. 1 (1968).
3. See California v. Acevedo, 500 U.S. 565 (1991).
4. See, e.g., Mincey v. Arizona, 437 U.S. 385, 390, 395 (1978).
5. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1071-77 (1995).
6. According to the Bureau of Justice Statistics, the "generally accepted indigency rate" for state felony cases in the early 1980s was forty-eight percent. See ROBERT L. SPANGENBERG ET AL., U.S. DEP'T OF JUSTICE, NATIONAL CRIMINAL DEFENSE SYSTEMS STUDY 33 tbl.29 (1986). By 1992, the comparable figure was eighty percent. See Steven K. Smith & Carol J. DeFrances, Indigent Defense, BUREAU OF JUST. STAT. SELECTED FINDINGS (U.S. Dep't of Justice, Wash., D.C.), Feb. 1996, at 1, 4.
7. According to the Bureau of Justice Statistics, the "generally accepted indigency rate" for state felony cases in the early 1980s was forty-eight percent. See ROBERT L. SPANGENBERG ET AL., U.S. DEP'T OF JUSTICE, NATIONAL CRIMINAL DEFENSE SYSTEMS STUDY 33 tbl.29 (1986). By 1992, the comparable figure was eighty percent. See Steven K. Smith & Carol J. DeFrances, Indigent Defense, BUREAU OF JUST. STAT. SELECTED FINDINGS (U.S. Dep't of Justice, Wash., D.C.), Feb. 1996, at 1, 4.
8. In 1970, forty-one percent of prison and jail inmates were black; fifty-eight percent of prison inmates and fifty-six percent of jail inmates were white. See MARGARET WERNER CAHALAN, U.S. DEP'T OF JUSTICE, HISTORICAL CORRECTIONS STATISTICS IN THE UNITED STATES, 1850-1984, at 65, 91 (1986). As of 1996, blacks outnumbered whites by 87,000 among federal and state prisoners. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES - 1996, at 81 tbl.5.6 (1999). As of 1998, whites continued to outnumber blacks among inmates of local jails, but only by one-tenth of a percentage point. See Darrell K. Gilliard, Prison and Jail Inmates at Midyear 1998, BUREAU OF JUST. STAT. BULL. (U.S. Dep't of Justice, Wash., D.C.), Mar. 1999, at 1, 6 tbl.7 (1999).
9. In 1970, forty-one percent of prison and jail inmates were black; fifty-eight percent of prison inmates and fifty-six percent of jail inmates were white. See MARGARET WERNER CAHALAN, U.S. DEP'T OF JUSTICE, HISTORICAL CORRECTIONS STATISTICS IN THE UNITED STATES, 1850-1984, at 65, 91 (1986). As of 1996, blacks outnumbered whites by 87,000 among federal and state prisoners. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES - 1996, at 81 tbl.5.6 (1999). As of 1998, whites continued to outnumber blacks among inmates of local jails, but only by one-tenth of a percentage point. See Darrell K. Gilliard, Prison and Jail Inmates at Midyear 1998, BUREAU OF JUST. STAT. BULL. (U.S. Dep't of Justice, Wash., D.C.), Mar. 1999, at 1, 6 tbl.7 (1999).
10. In 1970, forty-one percent of prison and jail inmates were black; fifty-eight percent of prison inmates and fifty-six percent of jail inmates were white. See MARGARET WERNER CAHALAN, U.S. DEP'T OF JUSTICE, HISTORICAL CORRECTIONS STATISTICS IN THE UNITED STATES, 1850-1984, at 65, 91 (1986). As of 1996, blacks outnumbered whites by 87,000 among federal and state prisoners. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES - 1996, at 81 tbl.5.6 (1999). As of 1998, whites continued to outnumber blacks among inmates of local jails, but only by one-tenth of a percentage point. See Darrell K. Gilliard, Prison and Jail Inmates at Midyear 1998, BUREAU OF JUST. STAT. BULL. (U.S. Dep't of Justice, Wash., D.C.), Mar. 1999, at 1, 6 tbl.7 (1999).
11. As of 1970, state and federal prisoners totaled 198,831. See CAHALAN, supra note 7, at 65. Jail inmates totaled 129,189 according to census data (Justice Department estimates were somewhat higher). See id. at 91. As of mid-year 1998, the total number of prison and jail inmates topped 1.8 million. See Gilliard, supra note 7, at 1.
12. The canonical cite is to Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
13. 460 U.S. 276 (1983).
14. See id. at 276.
15. See id. at 283-84.
16. See id. at 281-85.
17. 468 U.S. 705 (1984).
18. See id. at 713-14.
19. See id. at 716-18.
20. See Katz v. United States, 389 U.S. 347 (1967).
21. Professor LaFave's treatise so concludes. See 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.2(a), at 402-03 (1996).
22. The law on this subject is complicated, but in general, trespassory entries into either homes or yards constitute searches; the chief exception is entry into areas where a visitor - for example, someone delivering a package - might naturally venture. See id. § 2.3(f), at 504-10.
23. See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986).
24. See 1 LAFAVE, supra note 18, § 2.3(e), at 499 & n.159.
25. See id. at 497.
26. On the scope of the warrant requirement (and its application to little else besides homes), see William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881, 920-25 (1991).
27. If containers are found within cars, the automobile exception to the warrant requirement applies, and the police can search based on probable cause alone. See California v. Acevedo, 500 U.S. 565 (1991). (That rule applies even if the containers belong to someone other than the driver. See Wyoming v. Houghton, 119 S. Ct. 1297 (1999).) If the police find the same containers on an arrestee, the containers can be searched incident to the arrest, see United States v. Robinson, 414 U.S. 218 (1973) - and the warrant requirement does not cover arrests outside the home. See United States v. Watson, 423 U.S. 411 (1976). That covers most searches of containers found outside a home.
28. See Michigan v. Long, 463 U.S. 1032 (1983) (cars); Terry v. Ohio, 392 U.S. 1 (1968) (persons).
29. This is an underemphasized feature of Terry doctrine. Suspicion of the presence of a weapon gives rise to authority to "frisk" a suspect, but that suspicion typically arises from suspicion of a crime - the sort of crime that tends to be associated with weapons. That was the case in Terry itself: Officer McFadden suspected Terry and his friends of planning a robbery, meaning that he also suspected them of having weapons. See Terry, 392 U.S. at 5-7. It is also the case in the many Terry stops associated with the policing of drug trafficking.
30. See infra text accompanying notes 42-43 (discussing undercover agents and stakeouts).
31. See, for example, Arizona v. Hicks, 480 U.S. 321 (1987), where the Supreme Court held that moving a stereo turntable to copy down its serial number is a "search."
32. See Oliver v. United States, 466 U.S. 170 (1984).
33. This is apparently the case, though the point is contestable. In Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Court seemed to take for granted the necessity of probable cause and a warrant (both of which were present in that case) to justify a police search of a newspaper's offices. On the other hand, in O'Connor v. Ortega, 480 U.S. 709, 722-26 (1987), the Court upheld the validity of searches of offices by government employers for work-related reasons, even in the absence of probable cause and a warrant. The apparent line is between police searches designed to enforce the criminal law, and employer searches designed to enforce workplace rules.
34. The plurality opinion in O'Connor, 480 U.S. at 715, referred to "those areas and items that are related to work and are generally within the employer's control," thereby implying that government employers can inspect such areas at their discretion. It would seem to follow that employers can consent to a request by the police to view such areas as well.
35. See, e.g., Florida v. Bostick, 501 U.S. 429 (1991).
36. This is my formula, not the courts', though it captures the cases fairly well. The key to this odd definition of consent is the rule that consent can be voluntary even though the suspect did not know he had the right to refuse. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). For a good discussion of the cases governing consent, see 3 LAFAVE, supra note 18, §§ 8.1-.2.
37. 517 U.S. 806 (1996).
38. See id. at 813.
39. See PAUL A. JARGOWSKY, POVERTY AND PLACE: GHETTOS, BARRIOS, AND THE AMERICAN CITY 63 (1997) (noting that "non-Hispanic whites are only 18 percent of the concentrated poor, even though they account for more than half of the poor population nationally").
40. See id. at 63 & tbl.3.1 (noting that though blacks constituted only twenty-seven percent of poor people generally, they constitute fifty-six percent of poor people in "high-poverty areas").
41. See Tennessee v. Garner, 471 U.S. 1, 11 (1985). The officer is also allowed to use force to respond to an imminent threat of death or serious injury. See id.
42. See, e.g., Mincey v. Arizona, 437 U.S. 385, 393-94 (1978).
43. The importance of this aspect of the warrant process - it tends to be time-consuming for the police, so the police are likely to use it sparingly - was largely ignored until Donald Dripps pointed it out. See Donald A. Dripps, Living with Leon, 95 YALE L.J. 906, 926-30 (1986).
44. The phrase comes from Florida v. Bostick, 501 U.S. 429, 433 (1991); it refers to the practice of suspicionless, nominally consensual questioning of bus passengers.
45. See United States v. White, 401 U.S. 745, 749, 752-54 (1971).
46. This proposition follows from United States v. Knotts, 460 U.S. 276, 282-85 (1983), which held that police may observe suspects' movements from a vantage point that any member of the public might take. See supra notes 10-22 and accompanying text. Perhaps surprisingly, nothing in Fourth Amendment law limits the intensity or duration of such surveillance.
47. In 1961, the Supreme Court both applied the exclusionary rule to the states, see Mapp v. Ohio, 367 U.S. 643 (1961), and construed section 1983 to permit damages suits for constitutional violations by individual police officers even though the officers' conduct violated state as well as federal law. See Monroe v. Pape, 365 U.S. 167 (1961); see also 42 U.S.C. § 1983 (1994).
48. Changes in homicide rates are generally taken as fair proxies for changes in overall crime rates, particularly in periods for which detailed crime data are available. For a good, brief discussion of homicide rates over the course of American history, along with a showing that such rates fell sharply between the 1930s and the 1950s, see Eric Monkkonen, Homicide over the Centuries, in THE CRIME CONUNDRUM 163, 166-69 (Lawrence M. Friedman & George Fisher eds., 1997).
49. See ERIC H. MONKKONEN, THE LOCAL STATE: PUBLIC MONEY AND AMERICAN CITIES 31-32 (1995).
50. FBI index crimes - serious theft offenses plus violent felonies - rose three percent in 1960-61, six percent in 1961-62, and ten percent in 1962-63. From 1963 to 1971, increases averaged well over ten percent per year. See FBI, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1972, at 61 tbl.2 (1972) [hereinafter 1972 UNIFORM CRIME REPORTS].
51. in 1961, the FBI reported 2,087,500 index crimes; in 1971 the number was 5,995,200. See id. Population in 1961 was 183,691,000; by 1971 it had grown to 207,661,000. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES -1998, at 8 (1998).
52. Compare FBI, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1962, at 109 tbl.34 (1962), with 1972 UNIFORM CRIME REPORTS, supra note 47, at 162 tbl.54.
53. See discussion infra Part II.C.
54. On the rise in the crime rate, see FBI, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1991, at 58 tbl.1 (1992) [hereinafter 1991 UNIFORM CRIME REPORTS]. On the much smaller rise in the number of police officers, compare 1972 UNIFORM CRIME REPORTS, supra note 47, at 163 tbl.55 (showing a ratio of 2.0 officers per 1,000 inhabitants in 1972) with 1991 UNIFORM CRIME REPORTS, supra at 292 tbl.71 (showing a ratio of 2.2 officers per 1,000 inhabitants in 1991).
55. See MICHAEL J. HINDELANG ET AL., U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1973, at 325 tbl.5.32 (1973).
56. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1993, at 535 tbl.5.55 (Kathleen Maguire & Ann L. Pastore eds., 1994).
57. See Robert Reinhold, Police, Hard Pressed in Drug War, Are Turning to Preventive Efforts, N.Y. TIMES, Dec. 28, 1989, at A1 (reporting on Justice Department finding that arrests for drug offenses rose from 162, 177 in 1968 to 850,034 in 1988).
58. Index crimes declined 11.4% between 1991 and 1997. See FBI, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1997, at 66 tbl.1 (1997). Index crimes dropped an additional seven percent in 1998. See FBI, U.S. DEP'T OF JUSTICE, UNIFORM CRIME REPORTS: 1998 PRELIMINARY ANNUAL RELEASE 1 tbl.1 (1999) (indicating a cumulative drop of 17.6%).
59. For a recent analysis showing this result for drug defendants, see Edward L. Glaeser et al., What Do Prosecutors Maximize? An Analysis of the Federalization of Drug Crimes, 2 AM. L. & ECON. REV. (forthcoming 2000) (manuscript at 10 tbl.2, on file with author).
60. This may be why the guilty plea rate for fraud cases in state court is higher than for criminal cases as a whole - the reverse of what one would expect for cases involving high-end white-collar criminal litigation. See BUREAU OF CRIMINAL JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1997, at 422 tbl.5.47 (Kathleen Maguire & Ann L. Pastore eds., 1998).
61. Most of the material in this section appears, in somewhat different form, in William J. Stuntz, Race, Class, and Drugs, 98 COLUM. L. REV. 1795, 1802-03, 1808-09, 1819-24 (1998).
62. According to FBI statistics, 1997 saw 1,353,707 car thefts. See FBI, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1997, at 51 (1998). According to the National Household Survey on Drug Abuse, 4,169,000 people used cocaine in 1997. See U.S. DEP'T OF HEALTH AND HUMAN SERVS., NATIONAL HOUSEHOLD SURVEY ON DRUG ABUSE: POPULATION ESTIMATES 1997, at 29 (1998) [hereinafter HOUSEHOLD SURVEY]. The number of cocaine purchases is obviously a multiple of that last figure.
63. According to FBI statistics, 1997 saw 1,353,707 car thefts. See FBI, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1997, at 51 (1998). According to the National Household Survey on Drug Abuse, 4,169,000 people used cocaine in 1997. See U.S. DEP'T OF HEALTH AND HUMAN SERVS., NATIONAL HOUSEHOLD SURVEY ON DRUG ABUSE: POPULATION ESTIMATES 1997, at 29 (1998) [hereinafter HOUSEHOLD SURVEY]. The number of cocaine purchases is obviously a multiple of that last figure.
64. In a 1997 study of drug use in six major cities, the percentage of crack users who reported making their purchases outdoors (i.e., on the street) ranged from forty-eight to eighty-seven, and three of the six percentages exceeded seventy. See K. JACK RILEY, CRACK, POWDER COCAINE, AND HEROIN: DRUG PURCHASE AND USE PATTERNS IN SIX U.S. CITIES 17 tbl.18 (National Inst. of Justice 1997).
65. Riley's study reports substantially more powder than crack users making their purchases indoors, and substantially more powder than crack users making their purchases outside their own neighborhoods. See id. at 17 tbls.18-19. Both patterns are consistent with a tendency toward heavy use of the telephone and arranged meetings for powder cocaine transactions.
66. See, e.g., Craig D. Uchida & Brian Forst, Controlling Street-Level Drug Trafficking: Professional and Community Policing Approaches, in DRUGS AND CRIME: EVALUATING PUBLIC POLICY INITIATIVES 77, 83-84 (Doris Layton MacKenzie & Craig D. Uchida eds., 1994). Uchida and Forst add a third common police tactic, property seizures, but police are more likely to use that tactic against crack houses than street markets.
67. Consider the following description of drug sweeps conducted by New York police, and reactions to them, in the early 1990s: [W]hen 'sweeping' the main drug selling areas, the officers would cordon off both ends of a street and require everyone in between to lie down, regardless of who they were. While this tactic sometimes yielded a handsome number of arrests, it also obliged elderly grandmothers and young children to grovel on the asphalt while being roughly searched - and it enraged many residents. Richard Curtis, The Improbable Transformation of Inner-City Neighborhoods: Crime, Violence, Drugs and Youth in the 1990s, 88 J. CRIM. L. & CRIMINOLOGY 1233, 1254 (1998).
68. See sources cited supra notes 23-24.
69. See RICHARD VAN DUIZEND ET AL., THE SEARCH WARRANT PROCESS: PRECONCEPTIONS, PERCEPTIONS, PRACTICES 19-26 (1985).
70. In a study of the search warrant process in seven jurisdictions, the authors found that the jurisdictions that most frequently relied on confidential informants in warrant applications also had the lowest failure rates in searches pursuant to warrants. See id. at 34 tbl.15, 39 tbl.22.
71. In the seven jurisdictions studied, the success rates ranged from seventy-seven percent to ninety-one percent. See id. at 39 tbl.22. Even measured by whether the search uncovered a majority of the items listed in the warrant application (not just some such items), the success rates were high, ranging from sixty-four percent to eight-two percent. See id.
72. See supra notes 23-24. It is no coincidence that the leading Supreme Court cases on the definition of probable cause involve searches of dwellings or other enclosed structures. See Illinois v. Gates, 462 U.S. 213 (1983); Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).
73. This is true both as a matter of constitutional law, see Berger v. New York, 388 U.S. 41 (1967), and according to federal statute, see Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2515-2518 (1994 & Supp. IV 1998). The chief exception is the "wiring" of undercover agents, which requires neither probable cause nor ex ante review. See United States v. White, 401 U.S. 745 (1971).
74. See supra note 33.
75. The leading case is, of course, Terry v. Ohio, 392 U.S. 1 (1968). Terry arose out of a police officer's effort to prevent a crime that had not yet happened. See id. at 5-7. In United States v. Hensley, 469 U.S. 221 (1985), the Supreme Court held that officers could make brief street stops based on suspicion of past crimes as well.
76. See CAHALAN, supra note 7, at 65, 91.
77. See supra note 7.
78. In 1985, the number of state and federal prisoners convicted on drug charges numbered 48,000. See BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE UNITED STATES - 1995, at 9 tbl.1.11,11 tbl.1.13 (1997). By 1996, that number was just under 293,000. See Darrell K. Gilliard & Allen J. Beck, Prisoners in 1997, in BUREAU OF JUSTICE STATISTICS 11 tbl.15, 12 tbl.18 (1999).
79. In 1985, the number of state and federal prisoners convicted on drug charges numbered 48,000. See BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE UNITED STATES - 1995, at 9 tbl.1.11,11 tbl.1.13 (1997). By 1996, that number was just under 293,000. See Darrell K. Gilliard & Allen J. Beck, Prisoners in 1997, in BUREAU OF JUSTICE STATISTICS 11 tbl.15, 12 tbl.18 (1999).
80. See MARC MAUER & TRACY HULING, YOUNG BLACK AMERICANS AND THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 12 (1995).
81. On the change in racial composition of urban police forces, see W. MARVIN DULANEY, BLACK POLICE IN AMERICA 118 tbl.6, 122 tbls.13-14 (1996). Detroit offers a particularly striking example. In 1952, blacks constituted 0.8% of the city police force; by 1975, the number was 22.3%, and by 1987, it was forty-eight percent. See id.
82. In 1997, the National Household Survey on Drug Abuse estimates that 3,054,000 whites used cocaine during the past year and 952,000 used cocaine during the past month. For blacks, the analogous numbers are 593,000 and 332,000. For Hispanics, the numbers are 434,000 and 178,000. See HOUSEHOLD SURVEY, supra note 59, at 30-31.
83. See Stuntz, supra note 58, at 1813-19.
84. As of 1996, the population of federal drug prisoners was 56.5% white and 42.1% black. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1996, at 533 tbl.6.36 (Kathleen Maguire & Ann L. Pastore eds., 1997). As of the same year, blacks constituted 57.5% of state drug prisoners. See Gilliard & Beck, supra note 74, at 12 tbl.16.
85. As of 1996, the population of federal drug prisoners was 56.5% white and 42.1% black. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1996, at 533 tbl.6.36 (Kathleen Maguire & Ann L. Pastore eds., 1997). As of the same year, blacks constituted 57.5% of state drug prisoners. See Gilliard & Beck, supra note 74, at 12 tbl.16.
86. Compare LAW ENFORCEMENT ASSISTANCE ADMIN., U.S. DEP'T OF JUSTICE, SOURCEBOOK ON CRIMINAL JUSTICE - 1978, at 478 tbl.4.1 (Nicolette Parisi et al. eds., 1979), with BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK ON CRIMINAL JUSTICE - 1991, at 432 tbl.4.1 (1992).
87. Compare LAW ENFORCEMENT ASSISTANCE ADMIN., U.S. DEP'T OF JUSTICE, SOURCEBOOK ON CRIMINAL JUSTICE - 1978, at 478 tbl.4.1 (Nicolette Parisi et al. eds., 1979), with BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK ON CRIMINAL JUSTICE -1991, at 432 tbl.4.1 (1992).
88. See supra note 8 and accompanying text.
89. See Louis Michael Seidman, Making the Best of Fourth Amendment Law: A Comment on The Distribution of Fourth Amendment Privacy, 67 GEO. WASH. L. REV. 1296, 1296-99 (1999).
90. See id.
91. See Gideon v. Wainwright, 372 U.S. 335 (1963).
92. See Miranda v. Arizona, 384 U.S. 436 (1966).