"Be Careful What You Ask For": The 2000 Presidential Election, the U.S. Supreme Court, and the Law of Criminal Procedure

Indiana Law Journal

Volumn 76, Issue 4, 2001, Pages 887-935

  Bradley, Craig M ^a   Hoffmann, Joseph L ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 0345881059     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (401)

1. Vice President Al Gore, Vice President Al Gore Delivers Remarks at a Campaign Rally in Philadelphia, Campaign 2000 (Nov. 5, 2000) (transcript available at FDCH Political Transcripts, eMediaMillWorks, Inc.).
2. See. e.g., Talk of the Nation, (National Public Radio (NPR) Broadcast, Nov. 1, 2000), LEXIS, News Library, NPR File [hereinafter Talk of the Nation]. In my view, the Constitution ought to be interpreted as a document that grows with our country and our history. And I believe, for example, that there is a right of privacy in the Fourth Amendment. And when the phrase 'strict constructionist' is used and when the names of Scalia and Thomas are used as benchmarks for who would be appointed, those are code words, and nobody should mistake this, for saying that the governor would appoint people who would overturn Roe v. Wade. Id. at * 1-2 (statement of Vice President Al Gore).
3. 410 U.S. 113 (1973).
4. David G. Savage, More Than Just the Oval Office at Stake; Supreme Court: The Next President's Appointments Could Shape the Outcome of Decisions for Decades, L.A. TIMES, Oct. 2, 2000, at A1.
5. See Savage, supra note 4, at A1 ("The contrast [between Bush and Gore] goes far beyond abortion, however. On issues ranging from the environment and gun control to the death penalty, affirmative action, religion and gay rights, the Republicans and Democrats pledge to appoint judges who would push the law in quite different directions."); Talk of the Nation, supra note 2, at * 2 (statement of Melinda Penkava) ("Abortion is mentioned most often as hanging in the balance, but there is much more in play with the next Supreme Court nominations.").
6. See Savage, supra note 4, at A1 ("The contrast [between Bush and Gore] goes far beyond abortion, however. On issues ranging from the environment and gun control to the death penalty, affirmative action, religion and gay rights, the Republicans and Democrats pledge to appoint judges who would push the law in quite different directions."); Talk of the Nation, supra note 2, at * 2 (statement of Melinda Penkava) ("Abortion is mentioned most often as hanging in the balance, but there is much more in play with the next Supreme Court nominations.").
7. The "criminal procedure revolution" began with Mapp v. Ohio, 367 U.S. 643 (1961).
8. Justice Marshall joined Justice Brennan in retirement in 1991.
9. We recognize of course that, as president, Gore would never have gotten such liberal Justices approved by a Republican Senate, but that does not render uninteresting the question of what the criminal procedure doctrine of a liberal Supreme Court would be.
10. Since Justices Brennan and Marshall voted together on so many occasions, they will be considered together in this Article, though the rare cases in which they diverged will be noted.
11. In his chapter on criminal procedure in the book, The Burger Court: The Counter-revolution That Wasn't, Professor Yale Kamisar observes that while "the Burger Court [has] delivered some heavy blows to the Fourth Amendment" it did not "'retreat'... on all search and seizure fronts. Indeed, in some [areas] ... the present Court has even expanded or invigorated Fourth Amendment protections." Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?) and Police Investigatory Practices, in THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN'T 62, 78 (Vincent Blasi ed., 1983) (citing Payton v. New York, 445 U.S. 573 (1980), Ybarra v. Illinois, 444 U.S. 85 (1979), and Delaware v. Prouse, 440 U.S. 648 (1979)).
12. In his chapter on criminal procedure in the book, The Burger Court: The Counter- revolution That Wasn't, Professor Yale Kamisar observes that while "the Burger Court [has] delivered some heavy blows to the Fourth Amendment" it did not "'retreat'... on all search and seizure fronts. Indeed, in some [areas] ... the present Court has even expanded or invigorated Fourth Amendment protections." Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?) and Police Investigatory Practices, in THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN'T 62, 78 (Vincent Blasi ed., 1983) (citing Payton v. New York, 445 U.S. 573 (1980), Ybarra v. Illinois, 444 U.S. 85 (1979), and Delaware v. Prouse, 440 U.S. 648 (1979)).
13. Other significant rights extended by the Warren Court to criminal defendants that the Burger Court maintained, but which are beyond the scope of this Article, include the right to appointed counsel for indigent defendants, both at trial and on first appeal, (expanded to include misdemeanors by the Republican Court); the right to a speedy trial; the right to confront witnesses; and the right to receive material exculpatory information from the prosecutor. Indeed, the only right extended by the Warren Court that the Republican Court has actually severely undercut, as opposed to refusing to extend or limiting, is the right to counsel at lineups, limiting it to rare post-indictment lineups. See Kamisar, supra note 10, at 68.
14. Although the Republicans did not take full control of the Court until 1972, the Warren Court effectively ended two years earlier, in 1970, when Justice Blackmun - a conservative at the time - filled the vacancy created by Justice Fortas's resignation. Justice Blackmun thus joined his "Minnesota twin," Chief Justice Burger, who in 1969 had replaced Chief Justice Warren.
15. It didn't take long for the Republican Court to make its mark in criminal procedure. In 1971, a seven-Justice Court had voted, 4-3, to extend the holding of United States v. Wade, 388 U.S. 218 (1967), which required counsel at a post-indictment lineup, to a pre-indictment lineup. Before the opinion was issued, however, Justices Powell and Rehnquist joined the Court. The case was reargued and decided 5-4 against the defendant with the two new Justices swinging the Court to the State's position in Kirby v. Illinois, 406 U.S. 682 (1972). See BERNARD SCHWARTZ, THE UNPUBLISHED OPINIONS OF THE BURGER COURT 63-64 (1988).
16. 120 S.Ct. 2326 (2000).
17. Professor Sunstein's characterization of the dominant group on the current Court as "minimalists" - Justices who don't have a particular political agenda and simply try to decide each case on its merits - is perhaps a better characterization of today's majority. See generally CASS SUNSTEIN, ONE CASE AT A TIME (1999).
18. Justice Rehnquist, for example, urged the overruling of Mapp v. Ohio, 367 U.S. 643 (1961). See New York v. Belton, 453 U.S. 454 (1981) (Rehnquist, J., concurring). Chief Justice (then Judge) Burger rose to national prominence as an opponent of Miranda v. Arizona, 384 U. S. 436 (1966). CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 30 (1993). Chief Justice Burger further urged that the exclusionary remedy against police misconduct be replaced by a tort remedy. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 422 (1971) (Burger, C.J., dissenting). As Professor Jerold Israel observed in 1977, "neither the record of the Court nor the tenor of its majority opinions, taken as a whole, really supports a broad movement towards restricting the protections afforded the accused." Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1319, 1425 (1977); see also Kamisar, supra note 10. For a somewhat more pessimistic assessment of recent developments, see Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 TULSA L.J. 465 (1999).
19. Justice Rehnquist, for example, urged the overruling of Mapp v. Ohio, 367 U.S. 643 (1961). See New York v. Belton, 453 U.S. 454 (1981) (Rehnquist, J., concurring). Chief Justice (then Judge) Burger rose to national prominence as an opponent of Miranda v. Arizona, 384 U. S. 436 (1966). CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 30 (1993). Chief Justice Burger further urged that the exclusionary remedy against police misconduct be replaced by a tort remedy. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 422 (1971) (Burger, C.J., dissenting). As Professor Jerold Israel observed in 1977, "neither the record of the Court nor the tenor of its majority opinions, taken as a whole, really supports a broad movement towards restricting the protections afforded the accused." Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1319, 1425 (1977); see also Kamisar, supra note 10. For a somewhat more pessimistic assessment of recent developments, see Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 TULSA L.J. 465 (1999).
20. Justice Rehnquist, for example, urged the overruling of Mapp v. Ohio, 367 U.S. 643 (1961). See New York v. Belton, 453 U.S. 454 (1981) (Rehnquist, J., concurring). Chief Justice (then Judge) Burger rose to national prominence as an opponent of Miranda v. Arizona, 384 U. S. 436 (1966). CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 30 (1993). Chief Justice Burger further urged that the exclusionary remedy against police misconduct be replaced by a tort remedy. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 422 (1971) (Burger, C.J., dissenting). As Professor Jerold Israel observed in 1977, "neither the record of the Court nor the tenor of its majority opinions, taken as a whole, really supports a broad movement towards restricting the protections afforded the accused." Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1319, 1425 (1977); see also Kamisar, supra note 10. For a somewhat more pessimistic assessment of recent developments, see Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 TULSA L.J. 465 (1999).
21. Justice Rehnquist, for example, urged the overruling of Mapp v. Ohio, 367 U.S. 643 (1961). See New York v. Belton, 453 U.S. 454 (1981) (Rehnquist, J., concurring). Chief Justice (then Judge) Burger rose to national prominence as an opponent of Miranda v. Arizona, 384 U. S. 436 (1966). CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 30 (1993). Chief Justice Burger further urged that the exclusionary remedy against police misconduct be replaced by a tort remedy. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 422 (1971) (Burger, C.J., dissenting). As Professor Jerold Israel observed in 1977, "neither the record of the Court nor the tenor of its majority opinions, taken as a whole, really supports a broad movement towards restricting the protections afforded the accused." Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1319, 1425 (1977); see also Kamisar, supra note 10. For a somewhat more pessimistic assessment of recent developments, see Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 TULSA L.J. 465 (1999).
22. U.S. CONST, amend. IV.
23. Silverman v. United States, 365 U.S. 505, 512 (1961) (holding that the insertion of a "spike mike" in the wall of the suspect's hotel room was a search); accord Olmstead v. United States, 277 U.S. 438 (1928).
24. 389 U.S. 347, 353 (1967).
25. Id. at 351. For an insightful critique of Katz, see Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349 (1974).
26. E.g., California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)).
27. See Morgan Cloud, Pragmatism, Positivism and Principles in Fourth Amendment Theory, 41 UCLA L. REV. 199, 250 (1993) (pointing out the problems with the first prong).
28. 466 U.S. 170, 183-84 (1984). This doctrine, however, is hardly a product of the Republican Court, or at least of this Republican Court, since it dates back to the 1924 decision in Hester v. United States, 265 U.S. 57, 59 (1924).
29. This practice was not actually approved by the Court until Ciraolo, see supra note 21, and Florida v. Riley, 488 U.S. 445 (1989), decided in 1986 and 1989 respectively.
30. Oliver, 466 U.S. at 179. For a cogent critique of Oliver, see Stephen A. Saltzburg, Another Victim of Illegal Narcotics: The Fourth Amendment (as Illustrated by the Open Fields Doctrine), 48 U. PITT. L. REV. 1 (1986).
31. Oliver, 466 U.S. at 195 (Marshall, J., dissenting).
32. Id.
33. Id. at 196.
34. See California v. Greenwood, 486 U.S. 35, 37 (1988).
35. Id. at 46 (Brennan, J., dissenting).
36. See Smith v. Maryland, 442 U.S. 735, 737, 745-46 (1979).
37. See California v. Ciraolo, 476 U.S. 207, 209, 215 (1986).
38. Florida v. Riley, 488 U.S. 445, 449-50 (1989). Riley was a plurality opinion in which Justice O'Connor, who cast the deciding vote, observed that while people did not have expectations of privacy in public airspace 400 feet or more above their house, a lower flight than that might be a search for Fourth Amendment purposes. Id. at 455 (O'Connor, J., concurring). With the four dissenters presumably agreeing on this point, it follows after Riley that overflights lower than 400 feet should be considered searches. See id. at 455 (O'Connor, J., concurring); id. at 464-65 (Brennan, J., dissenting); id. at 467 (Blackmun, J., dissenting).
39. Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986). Justice Stevens voted with the majority in this case while Justice Powell wrote the dissent. Id. at 228.
40. See United States v. Jacobsen, 466 U.S. 109, 111, 118 (1984); accord Illinois v. Andreas, 463 U.S. 765, 770, 773 (1983) (container previously opened by a customs agent). In Andreas, Justices Brennan and Marshall would have required a warrant. Id. at 782 (Brennan, J., dissenting).
41. See Cardwell v. Lewis, 417 U.S. 583, 588, 592-93 (1974) (plurality opinion). In this case, in the early days of the Republican Court, Justice Stewart wrote the dissent, joined by Justices Douglas, Brennan, and Marshall. Justice Powell, though he expressed no disagreement with the plurality's views on the issue, only concurred in the result because he felt that Fourth Amendment claims should not be cognizable on federal habeas corpus, id. at 596 (Powell, J., concurring), a view that prevailed two years later in Stone v. Powell, 428 U.S. 465, 494 (1976).
42. See United States v. Knotts, 460 U.S. 276, 277, 285 (1983).
43. See United States v. Place, 462 U.S. 696, 707 (1983).
44. Except in Place, where they concurred in the result of overturning the conviction because investigation subsequent to the dog sniff had amounted to an arrest without probable cause. Place, 462 U.S. at 710-11 (Blackmun, J., concurring in the result). They rejected the majority's conclusion that this was not a search. See id. at 719-20.
45. Id. at 710-11.
46. California v. Greenwood, 486 U.S. 35, 55-56 (1988) (Brennan, J., dissenting).
47. Florida v. Riley, 488 U.S. 445, 466 (1989) (Brennan, J., dissenting) (quoting GEORGE ORWELL, NINETEEN EIGHTY-FOUR 4 (1949) (emphasis in original)).
48. California v. Hodari D., 499 U.S. 621, 626 (1991). In Hodari D., the suspect threw away drugs during the pursuit. Id. at 623.
49. See Florida v. Bostick, 501 U.S. 429, 439-40 (1991).
50. See INS v. Delgado, 466 U.S. 210, 220-21 (1984).
51. See Bostik, 501 U.S. at 440 (Marshall, J., dissenting); Hodari D., 499 U.S. at 629-30 (Stevens, J., dissenting); Delgado, 466 U.S. at 231 (Brennan, J., dissenting).
52. Delgado, 466 U.S. at 242 (Brennan, J., dissenting).
53. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
54. See Florida v. Riley, 488 U.S. 445, 449-50 (1989); California v. Ciraolo, 476 U.S. 207, 215 (1979).
55. This view may be traced back to the post-Katz opinions of Justice Harlan himself. For example, in United States v. White, 401 U.S. 745 (1971), a plurality of the Court concluded that the surreptitious police taping of a conversation between a defendant and a government informant was not a Fourth Amendment event. Id. at 752-54 (plurality opinion). Justice White, writing for the plurality, stressed the empirical reality that "[i]nescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police," and found no constitutional difference between such reporting and surreptitious police taping of the conversation. Id. at 752. Justice Harlan, in dissent, argued that the plurality's view depended on the improper normative assumption that "uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement, given the values and goals of our political system." Id. at 785 (Harlan, J., dissenting) (emphasis added). He added: Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether... we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement. Id. at 786 (emphasis added).
56. Oliver v. United States, 466 U.S. 170, 192 (1984) (Marshall, J., dissenting) (emphasis added).
57. Id. at 192.
58. 412 U.S. 218 (1973).
59. Id. at 249.
60. See Miranda v. Arizona, 384 U.S. 436 (1966).
61. See Schneckloth, 412 U.S. at 275-90.
62. 497 U.S. 177 (1990).
63. Id. at 179.
64. Id. at 180.
65. Id.
66. Id. at 180.
67. Id. at 187-89.
68. Id. at 186, 188-89. The Court remanded for a determination of whether the police in fact had a reasonable belief in the woman's "apparent authority" to consent. Id. 64. Id. at 198 (Marshall, J., dissenting).
69. The majority first declared deterrence of police misconduct as the goal of evidentiary exclusion in United States v. Calandra, 414 U.S. 338, 347 (1974). See infra note 186.
70. 415 U.S. 164 (1974).
71. See id. at 180-81 (Douglas, J., dissenting).
72. Id. at 188.
73. 392 U.S. 1 (1968). Only Justice Douglas dissented. Id. at 35 (Douglas, J., dissenting).
74. Id. at 30.
75. Id.
76. Id. at 16.
77. Id. at 27.
78. 407 U.S. 143 (1972).
79. Id. at 145.
80. Id. at 149, 151, 153.
81. Id. at 151 (Douglas, J., dissenting).
82. Id. at 153. Or at least that they must be based on the observations of the police themselves. Id. 79. Id. at 162-63.
83. Id. at 158.
84. Id. at 159. This was especially so, in Justice Marshall's view, because carrying a weapon was not a crime in the state. Id. 82. 469 U.S. 221 (1985).
85. Id. at 227.
86. 440 U.S. 648 (1979).
87. Id. at 663.
88. Id. at 664. As subsequent cases have shown, police will use the power of a traffic stop, and would have used even more broadly the power of random driver's license checks, to attempt to ferret out criminal activity. See, e.g., Ohio v. Robinette, 519 U.S. 33 (1996) (discussing traffic stops routinely used to seek consent to search); Whren v. United States, 517 U.S. 806 (1996) (upholding pretext traffic stops, where the police's true purpose is to search for drugs).
89. 496 U.S. 444 (1990).
90. Id. at 460.
91. Id. at 475.
92. Id. at 476.
93. See supra text accompanying notes 43-46.
94. 442 U.S. 200 (1979).
95. Id. at 216. Justice Rehnquist, joined by Chief Justice Burger, dissenting, agreed with the general holding but believed that Dunaway had voluntarily accompanied the police to the station house and that, even if he had not, his voluntary, warned statements should not have been suppressed since the police were acting consistently with New York law at the time. Id. at 221,226-27 (Rehnquist, J., dissenting).
96. 460 U.S. 491 (1983). Justice Rehnquist, joined by Chief Justice Burger and Justice O'Connor, dissented. Id. at 519 (Rehnquist, J., dissenting). Justice Blackmun dissented separately. Id. at 513 (Blackmun, J., dissenting).
97. Id. at 502-03.
98. Id. at 495.
99. Id. at 507-08.
100. Id. at 511-12.
101. Id. at 493 n.2.
102. 470 U.S. 675, 687 (1985); see also United States v. Place, 462 U.S. 696, 706 (1983) (holding that detaining a "stopped" suspect's luggage over the weekend to await a drug sniff by a dog was tantamount to an arrest, but that a brief detention for this purpose would not exceed the limitations on stops). Justices Brennan and Marshall did not agree with the latter point and thus concurred only in the result. Id. at 710-11 (Brennan, J., concurring in the result).
103. Sharpe, 470 U.S. at 677.
104. Id. at 678.
105. Id.
106. Id.
107. Id.
108. Id.
109. Id.
110. Id. at 683.
111. But see, e.g., United States v. Place, 462 U.S. 696, 709 (1983) (noting that police failure to take steps that would have "minimized the intrusion on respondent's Fourth Amendment interests" contributed to the holding that the seizure of the luggage was "unreasonable").
112. Sharpe, 470 U.S. at 687-88.
113. Id. at 688-89.
114. Id. at 702. Justice Stevens also dissented on different grounds. Id. at 721 (Stevens, J., dissenting).
115. Id. at 692-93, 701, 707-10.
116. Id. at 720-21 (citation omitted).
117. In Alabama v. White, 496 U.S. 325 (1990), Justices Brennan and Marshall joined Justice Stevens's dissent, in arguing that the anonymous tip in that case was insufficient. Id. at 333 (Stevens, J., dissenting). In United States v. Sokolow, 490 U.S. 1 (1989), they disagreed that innocent conduct by the defendant, which conformed to a drug courier profile, could lead to reasonable suspicion. Id. at 13 (Marshall, J., dissenting); see also Brown v. Texas, 443 U.S. 47, 49, 51-53 (1979) (joining a unanimous opinion for the defendant which held that seeing two men walking away from each other in a "high drug problem area," even if the police "had never seen [one of the men] in that area before," was not enough to constitute reasonable suspicion under Terry).
118. Michigan v. Long, 463 U.S. 1032, 1036-37 (1983).
119. Id. at 1054, 1065.
120. 389 U.S. 347 (1967).
121. Id. at 357.
122. Id. (citing Carroll v. United States, 267 U.S. 132 (1925) (automobile searches), Brinegar v. United States, 338 U.S. 160 (1948) (searches incident to arrest), and Warden v. Hayden, 387 U.S. 294 (1967) (searches based on exigent circumstances)).
123. See, e.g., United States v. Sharpe, 470 U.S. 675 (1985). Justice Brennan, dissenting, averred that Sharpe represented "an emerging tendency on the part of the Court [to believe] that the Fourth Amendment requires only that any seizure be reasonable" rather than that it employ the least intrusive means. Id. at 720 (Brennan, J., dissenting).
124. Craig M. Bradley, The Court's "Two Model" Approach to the Fourth Amendment, Carpe Diem!, 84 J. CRIM. L. & CRIMINOLOGY 429, 442 (1993); see also James J. Tomkovicz, California v. Acevedo: The Walls Close In on the Warrant Requirement, 29 AM. CRIM. L. REV. 1103, 1115 (1992).
125. Craig M. Bradley, The Court's "Two Model" Approach to the Fourth Amendment, Carpe Diem!, 84 J. CRIM. L. & CRIMINOLOGY 429, 442 (1993); see also James J. Tomkovicz, California v. Acevedo: The Walls Close In on the Warrant Requirement, 29 AM. CRIM. L. REV. 1103, 1115 (1992).
126. 456 U.S. 798 (1982).
127. Id. at 823.
128. Id. at 827 (Marshall, J., dissenting). Justice White also dissented; despite stating that he agreed with "much of Justice Marshall's dissent," he did not join it. Id. (White, J., dissenting).
129. Id. (Marshall, J., dissenting).
130. Id. at 831-32.
131. Id. at 827.
132. See united States v. Chadwick, 433 U.S. I, 13-16 (1977), overruled by California v. Acevedo, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 763-66 (1979), overruled by California v. Acevedo, 500 U.S. 565 (1991).
133. But see Cloud, supra note 22, at 297-98.
134. 500 U.S. 565 (1991).
135. Id. at 579-80.
136. Justice Stevens was joined by Justice Marshall. Id. at 585 (Stevens, J., dissenting). Justice White also dissented, "[a]greeing . . . with most of Justice Stevens's opinion." Id. (White, J., dissenting). Justice Brennan had retired.
137. Id. at 581 (Scalia, J., concurring in the judgment).
138. Id. at 581, 598.
139. The 1999 case of Wyoming v. Houghton, 526 U.S. 295 (1999), in which the Court approved the warrantless search of the passenger's purse in a car despite the fact that probable cause was limited to evidence that the driver was using marijuana, has taken the Court another step in this direction. See id. at 297-307.
140. See California v. Carney, 471 U.S. 386 (1985).
141. See New York v. Belton, 453 U.S. 454 (1981).
142. See United States v. Watson, 423 U.S. 411 (1976).
143. See United States v. Robinson, 414 U.S. 218 (1973).
144. Id. at 239 (Marshall, J., dissenting).
145. 460 U.S. 276 (1983).
146. Id. at 277, 285.
147. United States v. Karo, 468 U.S. 705 (1984). Justice O'Connor, joined by Justice Rehnquist, disagreed, arguing that only if the bug were to be placed in the defendant's own container would a warrant be required. Id. at 724-25 (O'Connor, J., concurring in part and concurring in judgment). However, the majority would have allowed use of such a beeper without a warrant if the container owner had consented. Id. at 711. As to this point, Justice Stevens, joined by Justices Brennan and Marshall, dissented, arguing that "[t]he attachment of the beeper... constituted a 'seizure.'" Id. at 728-30 (Stevens, J., dissenting).
148. 445 U.S. 573 (1980).
149. Id. Justice White, joined by the Chief Justice and Justice Rehnquist, dissented. Id. at 603 (White, J., dissenting). They felt that the common-law limitations on home arrests - "felony, knock and announce, daytime, and stringent probable cause" - were sufficient. Id. at 616. However, the dissent's claim that such arrest warrants will go "stale," id. at 619, is not responsive to the majority's holding. The majority did not require a search warrant (which might go stale) but only an arrest warrant (which cannot) plus "reason to believe the suspect is within," id. at 603, a showing that apparently need not appear in the warrant and that would not seriously impede the arrest process.
150. 451 U.S. 204 (1981).
151. Id. at 220-22. Justice Rehnquist, joined by Justice White, dissented. Id. at 223 (Rehnquist, J., dissenting).
152. Stoner v. California, 376 U.S. 483 (1964).
153. O'Connor v. Ortega, 480 U.S. 709 (1987) (finding a reasonable expectation of privacy for employees' desks and files and setting out a reasonableness standard for employer searches of employee offices).
154. New Jersey v. T.L.O., 469 U.S. 325 (1985). The Court found the warrant requirement to be unsuitable to the school environment and allowed school officials to search without a warrant upon a finding of reasonableness. Id. at 340.
155. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (requiring search warrants for OSHA inspections of business premises for safety hazards).
156. In United States v. Dunn, 480 U.S. 294 (1987), the Court stated, "We may accept, for the sake of argument, respondent's submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant." Id. at 303.
157. 480 U.S. 321 (1987).
158. Id. at 324-27.
159. 437 U.S. 385 (1978).
160. Id. at 395.
161. 466 U.S. 740 (1984).
162. Id. at 750-53.
163. 495 U.S. 91 (1990).
164. See id. at 100-01. Chief Justice Rehnquist dissented with various other Justices in Olson, Hicks, and Welsh. See Olson, 495 U.S. at 101 (Rehnquist, C.J., joined by Blackmun, J., dissenting); Hicks, 480 U.S. at 330 (Rehnquist, C.J., joined by Powell & O'Connor, JJ., dissenting); Welsh, 466 U.S. at 756 (Rehnquist, J., joined by White, J., dissenting).
165. Maryland v. Buie, 494 U.S. 325, 334 (1990); see also Washington v. Chrisman, 455 U.S. 1 (1982) (allowing the police to monitor the movements of an arrested person - e.g., into another room to change clothes - following an arrest).
166. Buie, 494 U.S. at 342-43.
167. 462 U.S. 213 (1983).
168. 393 U.S. 410 (1969). There is a dispute in Gates over just what Spinelli required. Compare Gates, 462 U.S. at 228-30 (Rehnquist, J.), with id. at 270 & n.22 (White, J., concurring in the judgment), and id. at 279-82 (Brennan, J., dissenting).
169. Gates, 462 U.S. at 238 (defining "probable cause" as a "fair probability that contraband or evidence of a crime will be found").
170. Id. at 245-46. As Justice Stevens pointed out in dissent, however, the tip was not as accurate as the majority described it. Id. at 291-93 (Stevens, J., dissenting).
171. Id. at 233-34.
172. Id. at 274 (Brennan, J., dissenting).
173. Id. at 291. Likewise, Justices Brennan and Marshall dissented (without opinion) in Massachusetts v. Upton, 466 U.S. 727 (1984), where the Court applied Gates to uphold a search warrant based on an informant's tip. Id. at 728-35 (per curiam). For criticism of Gates, see Wayne R. LaFave, Fourth Amendment Vagaries (of Improbable Cause, Imperceptible Plain View, Notorious Privacy, and Balancing Askew), 74 J. CRIM. L. & CRIMINOLOGY 1171, 1186-99 (1983); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 274-75, 329-40 (1984).
174. Id. at 291. Likewise, Justices Brennan and Marshall dissented (without opinion) in Massachusetts v. Upton, 466 U.S. 727 (1984), where the Court applied Gates to uphold a search warrant based on an informant's tip. Id. at 728-35 (per curiam). For criticism of Gates, see Wayne R. LaFave, Fourth Amendment Vagaries (of Improbable Cause, Imperceptible Plain View, Notorious Privacy, and Balancing Askew), 74 J. CRIM. L. & CRIMINOLOGY 1171, 1186-99 (1983); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 274-75, 329-40 (1984).
175. 416 U.S. 430 (1974).
176. Id. at 458.
177. 496 U.S. 128 (1990).
178. Id. at 137-42, 144.
179. 452 U.S. 692 (1981).
180. Id. at 698-706.
181. Id. at 708-09. It is unclear whether the dissenters would also have required that such detention be authorized by the warrant or justified by exigent circumstances beyond those present in the usual search.
182. Ybarra v. Illinois, 444 U.S. 85 (1979). Justice Rehnquist, joined by two others, dissented. Id. at 98-110 (Rehnquist, J., joined by Burger, C.J., & Blackmun, J., dissenting).
183. 468 U.S. 897 (1984).
184. Id. at 905.
185. Id. at 917 n.18.
186. Id. at 923.
187. One exception is for police reliance on a state statute that is later declared unconstitutional. Illinois v. Krull, 480 U.S. 340 (1980). Another is for police reliance on a clerical error committed by generally reliable court employees. Arizona v. Evans, 514 U.S. 1 (1995).
188. Leon, 468 U.S. at 929 (Brennan, J., dissenting). Justice Stevens dissented separately. Id. at 960 (Stevens, J., dissenting).
189. Id. at 929.
190. This view was first adopted by a majority in United States v. Calandra, 414 U.S. 338 (1974), in which Justice Brennan, joined by Justices Douglas and Marshall, dissented. Id. at 355 (Brennan, J., dissenting). Justice Stevens, though he also dissented in Leon, agreed that deterrence is the purpose for the exclusionary rule. Leon, 468 U.S. at 960 (Stevens, J., dissenting); see also Arnold H. Loewy, Police-Obtained Evidence and the Constitution: Distinguishing Unconstitutionally Obtained Evidence from Unconstitutionally Used Evidence, 87 MICH. L. REV. 907, 909-11, 939 (1989) (concluding that the majority's view is correct).
191. 439 U.S. 128 (1978).
192. Id. at 134, 148-49.
193. As Justice Powell pointed out in concurrence, the passengers could have protested the illegal stop of the car, since their right to proceed down the road unmolested was the same as the driver's. However, this issue was not raised. Id. at 150-51 (Powell, J., concurring).
194. Id. at 168-69 (White, J., dissenting).
195. Id. at 166.
196. E.g., Segura v. United States, 468 U.S. 796 (1984) (taking a broad view of the independent-source doctrine); see also Murray v. United States, 487 U.S. 533 (1989) (taking an even broader view of the independent-source doctrine); Oregon v. Elstad, 470 U.S. 298 (1975) (holding that the fruit-of-the-poisonous-tree doctrine does not apply to Miranda violations); Nix v. Williams, 467 U.S. 431 (1984) (recognizing the inevitable-discovery doctrine). For a critique of these cases, see Craig M. Bradley, Murray v. United States: The Bell Tolls for the Search Warrant Requirement, 64 IND. L.J. 907 (1989).
197. E.g., United States v. Havens, 446 U.S. 620 (1980) (holding that illegally seized evidence maybe used to impeach defendant's testimony); Harris v. New York, 401 U.S. 222 (1971) (holding that a confession obtained in violation of Miranda may be used to impeach). But see James v. Illinois, 493 U.S. 307 (1990) (5-4 decision) (Brennan, J.) (refusing to allow prosecution to impeach defense witnesses other than defendant with illegally obtained statement of defendant). For an analysis of these cases, see James M. Spira, James v. Illinois: A Halt to the Expansion of the Impeachment Exception, 15 SO. ILL. U. LJ. 27 (1990); James L. Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, 44 STAN. L. REV. 1301 (1992).
198. E.g., United States v. Havens, 446 U.S. 620 (1980) (holding that illegally seized evidence maybe used to impeach defendant's testimony); Harris v. New York, 401 U.S. 222 (1971) (holding that a confession obtained in violation of Miranda may be used to impeach). But see James v. Illinois, 493 U.S. 307 (1990) (5-4 decision) (Brennan, J.) (refusing to allow prosecution to impeach defense witnesses other than defendant with illegally obtained statement of defendant). For an analysis of these cases, see James M. Spira, James v. Illinois: A Halt to the Expansion of the Impeachment Exception, 15 SO. ILL. U. LJ. 27 (1990); James L. Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, 44 STAN. L. REV. 1301 (1992).
199. E.g., INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (holding that wrongfully obtained admissions from alleged illegal aliens may be used in civil deportation proceedings); United States v. Janis, 428 U.S. 433 (1976) (holding that cash illegally seized by the police may be subject to an IRS levy); United States v. Calandra, 414 U.S. 338 (1974) (holding that illegally obtained evidence may be used in grand jury proceedings).
200. 428 U.S. 465 (1976).
201. 384 U.S. 436 (1966).
202. See, e.g., SPECIAL COMM. ON CRIMINAL JUSTICE IN A FREE SOCIETY,AM. BAR ASSOC., CRIMINAL JUSTICE IN CRISIS (1988). The committee found that "a very strong majority of those surveyed - prosecutors, judges, and police officers - agree that compliance with Miranda does not present serious problems for law enforcement." Id. at 28. Miranda may even help the police in some situations by providing a safe harbor for what might otherwise be controversial interrogation tactics; for example, judges may be less likely to engage in searching judicial review under the traditional voluntariness standard if the police have properly Mirandized the subject of the interrogation. See. e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1842 (1987) (stating that police officers have learned that once they obtain a waiver, they have great latitude in conducting an interrogation); Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 745-46 (1992). In the quarter century since Miranda, the Court has reversed only two convictions on the ground that post-Miranda custodial interrogation produced an involuntary statement.... Not surprisingly, in the face of this silence at the top, many lower courts have adopted an attitude toward voluntariness claims that can only be called cavalier. Id.
203. See, e.g., SPECIAL COMM. ON CRIMINAL JUSTICE IN A FREE SOCIETY,AM. BAR ASSOC., CRIMINAL JUSTICE IN CRISIS (1988). The committee found that "a very strong majority of those surveyed - prosecutors, judges, and police officers - agree that compliance with Miranda does not present serious problems for law enforcement." Id. at 28. Miranda may even help the police in some situations by providing a safe harbor for what might otherwise be controversial interrogation tactics; for example, judges may be less likely to engage in searching judicial review under the traditional voluntariness standard if the police have properly Mirandized the subject of the interrogation. See. e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1842 (1987) (stating that police officers have learned that once they obtain a waiver, they have great latitude in conducting an interrogation); Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 745-46 (1992). In the quarter century since Miranda, the Court has reversed only two convictions on the ground that post-Miranda custodial interrogation produced an involuntary statement.... Not surprisingly, in the face of this silence at the top, many lower courts have adopted an attitude toward voluntariness claims that can only be called cavalier. Id.
204. See, e.g., SPECIAL COMM. ON CRIMINAL JUSTICE IN A FREE SOCIETY,AM. BAR ASSOC., CRIMINAL JUSTICE IN CRISIS (1988). The committee found that "a very strong majority of those surveyed - prosecutors, judges, and police officers - agree that compliance with Miranda does not present serious problems for law enforcement." Id. at 28. Miranda may even help the police in some situations by providing a safe harbor for what might otherwise be controversial interrogation tactics; for example, judges may be less likely to engage in searching judicial review under the traditional voluntariness standard if the police have properly Mirandized the subject of the interrogation. See. e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1842 (1987) (stating that police officers have learned that once they obtain a waiver, they have great latitude in conducting an interrogation); Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 745-46 (1992). In the quarter century since Miranda, the Court has reversed only two convictions on the ground that post-Miranda custodial interrogation produced an involuntary statement.... Not surprisingly, in the face of this silence at the top, many lower courts have adopted an attitude toward voluntariness claims that can only be called cavalier. Id.
205. See, e.g., Michigan v. Jackson, 475 U.S. 625 (1986) (holding that police cannot request Miranda waiver from suspect who has previously invoked S ixth Amendment right to counsel); Edwards v. Arizona, 451 U.S. 477 (1981) (holding that police generally cannot request Miranda waiver from a suspect who has previously invoked Miranda right to counsel).
206. See Carol S. Steiker, Counter-revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466 (1996) (discussing difference between "conduct rules," which directly regulate the police, and "decision rules," which regulate the enforcement of conduct rules by the courts). According to Professor Steiker, the general public is aware of many of the conduct rules but - unlike the police - is often unaware of the decision rules that limit the enforcement of these conduct rules. Id. at 2470. Thus, it often overestimates the degree to which police investigation is actually restricted. Id. at 2471. However, in the Fourth Amendment cases discussed earlier, the Republican Court has also substantially modified the conduct rules.
207. See Dickerson v. United States, 120 S. Ct. 2326 (2000).
208. Miranda, 384 U.S. at 444.
209. Id. at 444 n.4. The phrase was taken from Escobedo v. Illinois, 378 U.S. 478, 492 (1964).
210. The Warren Court's greatest expansion of the term "custody" came in the case of Orozco v. Texas, 394 U.S. 324 (1969), where the Court held that a suspect who was interrogated in his bedroom at 4 A.M. by four police officers (one of whom conceded at trial that the suspect was effectively "under arrest" and not free to go where he pleased) was entitled to Miranda warnings. Id. at 325-26. The Warren Court, however, never extended Miranda to any situations that did not involve a formal arrest or its functional equivalent.
211. Beckwith v. United States, 425 U.S. 341, 347 (1976). But cf. Oregon v. Elstad, 470 U.S. 298, 315-16 (1985) (finding that a suspect questioned in his home by police was in custody because he had been arrested); supra note 203 (discussing Orozco). 205. United States v. Mandujano, 425 U.S. 564, 578-84 (1976).
212. Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977) (per curiam).
213. California v. Beheler, 463 U.S. 1121, 1122, 1125 (1983) (per curiam).
214. Minnesota v. Murphy, 465 U.S. 420, 429-30 (1984).
215. In all of the cases save one, Justice Marshall joined with Justice Brennan on the custody issue. The lone exception was Beckwith, where Justice Marshall concurred in the judgment upholding the defendant's conviction because the IRS agents had given the defendant a warning that was similar enough to the Miranda warnings to comply with the Fifth Amendment's requirements. Beckwith, 425 U.S. at 348-49 (Marshall, J., concurring in the judgment).
216. Id. at 350 (Brennan, J., dissenting).
217. Id. at 351.
218. Id.
219. Id.
220. 468 U.S. 420 (1984).
221. Id. at 435.
222. Justice Stevens did not join this part of Justice Marshall's opinion, believing that the custody issue was not properly presented by the government's petition for certiorari. Id. at 445 (Stevens, J., concurring in part and concurring in the judgment).
223. Id. at 439-42.
224. Id. at 440.
225. 392 U.S. 1, 30-31 (1968).
226. Berkemer, 468 U.S. at 441.
227. Miranda v. Arizona, 384 U.S. 436, 444 (1966). On the subject of interrogation, see generally Yale Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is Interrogation? When Does It Matter?, 67 GEO. L.J. 1 (1978); Welsh S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 MICH. L. REV. 1209 (1980).
228. Miranda v. Arizona, 384 U.S. 436, 444 (1966). On the subject of interrogation, see generally Yale Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is Interrogation? When Does It Matter?, 67 GEO. L.J. 1 (1978); Welsh S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 MICH. L. REV. 1209 (1980).
229. 446 U.S. 291 (1980).
230. Id. at 294-95.
231. Id. at 302.
232. Id.
233. Id. at 305 (Marshall, J., dissenting).
234. Id.
235. Id. at 306 (emphasis in original).
236. 481 U.S. 520 (1987).
237. Id. at 531 (Stevens, J., dissenting).
238. Id. at 527.
239. Id. at 533-34 (Stevens, J., dissenting).
240. Id. at 531.
241. Id. at 531-32.
242. 496 U.S. 582 (1990).
243. 459 U.S. 553 (1983).
244. 496 U.S. 292 (1990).
245. Muniz, 496 U.S. at 600-01.
246. Id. at 601. Four other Justices agreed with Justice Brennan 's result, but on the alternate ground that the routine booking questions were not interrogation at all. Id. at 606-08 (Rehnquist, C. J., joined by White, Blackmun, & Stevens, JJ., concurring in the result in part). On the separate issue of whether asking the suspect to state the date of his sixth birthday was interrogation, Justice Brennan wrote for a majority of five (including Justice Marshall), holding that it was. Id. at 592-600.
247. Id. at 608-09 (Marshall, J., dissenting).
248. Neville, 459 U.S. at 564-66.
249. Id. at 567 (Stevens, J., dissenting).
250. Illinois v. Perkins, 496 U.S. 292, 300 (1990) (Brennan, J., concurring in the judgment).
251. Id. at 296-300.
252. Id. at 300 (Brennan, J., concurring in the judgment).
253. Id. at 301.
254. Id. at 300 (Brennan, J., concurring in the judgment).
255. Id. at 306 (Marshall, J., dissenting).
256. Supra note 248 and accompanying text.
257. See Perkins, 496 U.S. at 300 (Brennan, J., concurring in the judgment).
258. See South Dakota v. Neville, 459 U.S. 553, 564 n.15 (1993).
259. See, e.g., Duckworth v. Eagan, 492 U.S. 195 (1989); California v. Prysock, 453 U.S. 355 (1981) (involving suspects whose Miranda warnings were delivered in a nonstandard, and arguably confusing, form). Justices Brennan and Marshall joined the dissents in both cases. Duckworth, 492 U.S. at 214 (Marshall, J., dissenting); Prysock, 453 U.S. at 362 (Stevens, J., dissenting).
260. Colorado v. Spring, 479 U.S. 564, 578-79 (Marshall, J., dissenting).
261. 475 U.S. 412 (1986).
262. Id. at 417.
263. Id.
264. Id. at 417-18. While the statement made by the police officer to the lawyer was clearly false, it is not clear that the officer who made the statement knew that other police officers intended to question Burbine later that night about the murder. See id. at 418.
265. See id. at 420.
266. Id. at 422-23.
267. Id. at 422.
268. Id. at 428.
269. Id. at 433-34.
270. Id. at 456 (Stevens, J., dissenting).
271. Id. at 463.
272. Id.
273. Id. at 468.
274. Id.
275. Id. at 450-51.
276. See id. at 462-65.
277. See id. at 463 n.53.
278. Id. at 435 n.3.
279. Id. at 434 n.1 (quoting 2WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN ch. 46, § 34 (Garland Publishing, Inc. 1978) (1716-21)).
280. Id. at 433 n.4.
281. This same point was made, in a different but related context, by lawyer and former Governor of Illinois James Thompson, who argued the State's case in Escobedo v. Illinois, 378 U.S. 478 (1964). In his brief to the Court in Escobedo, Thompson warned that conferring a right to counsel upon all arrested suspects, and then insisting that all waivers of such a right must be truly informed, "means the end of confessions as a tool of law enforcement." Brief of Respondent at 39, Escobedo v. Illinois, 378 U.S. 478 (1964) (No. 64-615).
282. Burbine, 475 U.S. at 422; see also James J. Tomkovicz, Standards for Invocation and Waiver of Counsel in Confession Contexts, 71 IOWA L. REV. 975, 1049 (1986) ("The policies of the fifth amendment privilege do not demand rationality, intelligence, or knowledge, but only a voluntary choice not to remain silent.").
283. See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990's: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 842 (1996).
284. 304 U.S. 458 (1938).
285. Id. at 464.
286. See Miranda v. Arizona, 384 U.S. 436, 475 (1966). For a discussion of why Johnson v. Zerbst, a case about waiver of counsel at trial, should not be applied in the interrogation context, see Tomkovicz, supra note 275, at 1043-59.
287. Miranda, 384 U.S. at 475.
288. 441 U.S. 369 (1979).
289. Id. at 373.
290. Id.
291. Id. at 377 (Brennan, J., dissenting).
292. See Tague v. Louisiana, 444 U.S. 469, 470-71 (1980) (per curiam).
293. Id. at 471.
294. 479 U.S. 523 (1987).
295. Id. at 525.
296. Id. at 526.
297. Id. at 527-28.
298. Id. at 536-37 (Stevens, J., dissenting).
299. Id. at 532 (Brennan, J., concurring).
300. Id. at 531.
301. Available empirical evidence suggests that, even after receiving Miranda warnings, suspects often do not understand that oral statements can be used against them in court. See Lawrence S. Leiken, Police Interrogation in Colorado: The Implementation of Miranda, 47 DENVER L.J. 1, 15 (1970) (finding that forty-five percent of post-Miranda suspects believed oral statements could not be used against them).
302. 442 U.S. 707 (1979).
303. Id. at 724.
304. Id. at 730-31 (Marshall, J., dissenting).
305. See North Carolina v. Butler, 441 U.S. 369, 377 (Brennan, J., dissenting).
306. 423 U.S. 96 (1975).
307. Id. at 103-04.
308. . Id. at 106.
309. Id. at 106-07.
310. Id. at 112 (Brennan, J., dissenting).
311. See Kamisar, supra note 10, at 62, 83, 286 n.133.
312. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
313. Arizona v. Roberson, 486 U.S. 675, 682-85 (1988).
314. Minnick v. Mississippi, 498 U.S. 146, 150 (1990).
315. Edwards, 451 U.S. at 477.
316. 462 U.S. 1039 (1983).
317. Id. at 1039.
318. Id. at 1045-46.
319. Id. at 1055 (Marshall, J., dissenting).
320. 377 U.S. 201 (1964).
321. 378 U.S. 478 (1964).
322. Massiah, 377 U.S. at 204-07.
323. Escobedo, 378 U.S. at 485-92.
324. Miranda v. Arizona, 384 U.S. 436, 440-42 (1966).
325. Id. at 474.
326. 447 U.S. 264 (1980).
327. Id. at 269-75.
328. 474 U.S. 159 (1985).
329. Id. at 172-80.
330. Henry, 447 U.S. at 264.
331. Moulton, 474 U.S. at 161.
332. 477 U.S. 436 (1986).
333. Id. at 456-61.
334. Id. at 472-76 (Brennan, J., dissenting).
335. Id. at 474.
336. 430 U.S. 387 (1977).
337. Id. at 387.
338. Id.
339. Id. at 399-401, 399 n.6.
340. See, e.g., Rhode Island v. Innis, 446 U.S. 291 (1980) (finding no interrogation, within the meaning of Miranda, on relatively similar facts).
341. Williams, 430 U.S. at 388. In a subsequent iteration of the same case, the body of the murder victim, discovered as a direct result of Williams's confession, was held by a majority of the Court to be admissible, despite the Sixth Amendment violation, because the police inevitably would have found it anyway, given the scope and pace of the ongoing search for the victim. Nix v. Williams, 467 U.S. 431, 456-58 (1984).
342. Edwards v. Arizona, 451 U.S. 477, 486-87 (1981).
343. 475 U.S. 625 (1986).
344. Id. at 625, 634-35.
345. Id. at 625.
346. In Patterson v. Illinois, 487 U.S. 285 (1988), the Court (with Justice Brennan in dissent) held that a proper Miranda waiver also serves to waive the Sixth Amendment right at issue in Jackson. Id. at 296-97. However, Patterson is not a major limitation on Jackson, since even a Miranda waiver can only be requested by the police before the defendant has asserted the Sixth Amendment right to counsel, and most defendants assert their Sixth Amendment rights immediately upon the start of formal adversarial proceedings. In Patterson, however, the suspect was indicted while in police custody, and the Miranda waiver was requested before the suspect was arraigned (at which point he would surely have asserted his Sixth Amendment right to counsel and would thereby have acquired the air-tight Jackson protection). Id. at 288; see also Texas v. Cobb, 121 S. Ct. 1335 (2001) (post-Brennan decision) (holding that the Sixth Amendment Jackson right is offense specific and does not protect a defendant from questioning about other crimes, contrary to an Edwards assertion, which does); McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (post-Brennan decision) (same).
347. Doyle v. Ohio, 426 U.S. 610, 617-18 (1976) (Justice Brennan joined the majority opinion). But a suspect is not protected against impeachment use of post-arrest silence during the period before the suspect receives any Miranda warnings. Fletcher v. Weir, 455 U.S. 603, 605-07 (1982) (per curiam). A suspect is not protected against the impeachment use of any statements made in response to the Miranda warnings. Anderson v. Charles, 447 U.S. 404, 408-09 (1980) (per curiam). In addition, a suspect is not protected against the impeachment use of pre-arrest silence. Jenkins v. Anderson, 447 U.S. 231, 238-41 (1980). Justices Brennan and Marshall dissented in Jenkins. Id. at 245-54 (Marshall, J., dissenting).
348. E.g., Michigan v. Harvey, 494 U.S. 344, 350-54 (1990) (Jackson violation); Oregon v. Hass, 420 U.S. 714, 720-24 (1975) (Miranda violation); Harris v. New York, 401 U.S. 222, 225-26 (1971) (Miranda violation).
349. See Nix v. Williams, 467 U.S. 431, 440-50 (1984).
350. See Oregon v. Elstad, 470 U.S. 298, 303-18 (1985).
351. See generally YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE 802-11 (9th ed. 1999) (discussing whether confessions obtained in violation of Miranda are "poisonous trees"). We think that Justice Brennan had Elstad right. The Elstad loophole was not serious in that case, because the original conversation in the suspect's living room was arguably not custodial interrogation at all. But it has been pushed beyond reasonable limits by police, as Professor Alshuler predicted it would be at the time. Albert W. Alshuler, Failed Pragmatism: Reflections on the Burger Court, 100 HARV. L. REV. 1436, 1442-43 (1987). For example, the D.C. Court of Appeals recently approved a police interrogation where the defendant was interrogated intermittently for almost two hours while in handcuffs at the station house. Davis v. United States, 724 A.2d 1163, 1165-70 (D.C. 1998). Only after he confessed was he given the Miranda warnings, after which his second confession, complete with warnings, was videotaped and used in court. Id. at 1165-66.
352. See generally YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE 802-11 (9th ed. 1999) (discussing whether confessions obtained in violation of Miranda are "poisonous trees"). We think that Justice Brennan had Elstad right. The Elstad loophole was not serious in that case, because the original conversation in the suspect's living room was arguably not custodial interrogation at all. But it has been pushed beyond reasonable limits by police, as Professor Alshuler predicted it would be at the time. Albert W. Alshuler, Failed Pragmatism: Reflections on the Burger Court, 100 HARV. L. REV. 1436, 1442-43 (1987). For example, the D.C. Court of Appeals recently approved a police interrogation where the defendant was interrogated intermittently for almost two hours while in handcuffs at the station house. Davis v. United States, 724 A.2d 1163, 1165-70 (D.C. 1998). Only after he confessed was he given the Miranda warnings, after which his second confession, complete with warnings, was videotaped and used in court. Id. at 1165-66.
353. Elstad, 470 U.S. at 319, 348 (Brennan, J., dissenting).
354. Dickerson v. United States, 120 S. Ct. 2326 (2000); see supra text accompanying note 200.
355. Id. at 2336-37.
356. See Robert McKay, Introductory Remarks, 42 REC. ASS'N B. CITY N.Y. 948, 950 (1987).
357. See Panel Discussion, Brennan's Approach to Reading and Interpreting the Constitution, 43 N.Y. L. SCH. L.R. 41, 47 (1999) (comments of Burt Neuborne).
358. Andrew Rosenthal, Marshall Retires from High Court; Blow to Liberals, N.Y. TIMES, June 28, 1991, at A13.
359. William Wayne Justice, In Memoriam: Law Day Address at the University of Texas at Austin: The Enlightened Jurisprudence of Justice Thurgood Marshall, 71 TEX. L. REV. 1099, 1109 (1993).
360. But see infra text accompanying notes 363-67 (suggesting that Justice Brennan might have moderated his stances had he been making law rather than criticizing the Republican court).
361. As discussed above, the inevitable-discovery and independent-source exceptions would have been significantly curtailed, but not eliminated. See supra Part III.G. The Leon good-faith exception, together with the various use-for-impeachment exceptions, would be gone. See supra Part III.G.
362. This exception exists only when a suspect spontaneously expresses a clear desire to reopen discussion of the case. Oregon v. Bradshaw, 462 U.S. 1039, 1052-54 (1983) (Marshall, J., dissenting).
363. The first of these two exceptions is the unanimous opinion in Hensley. See supra text accompanying note 82 (discussing Hensley's extension of Terry stops to those reasonably suspected of past, as well as present, criminality). The second is the essentially unanimous portion of the opinion in United States v. Crews, 445 U.S.463 (1980) (partial majority opinion by Justice Brennan, allowing in-court identification by a witness who had previously seen an improperly obtained photograph of the defendant, but refusing to agree with a majority that a defendant's face could never be a suppressible fruit of the poisonous tree).
364. Justice Rehnquist has frequently been criticized along the lines expressed by David Shapiro, that "the unyielding character of his ideology has had a substantial adverse effect on his judicial product." David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 HARV. L. REV. 293, 293 (1976). However, as Shapiro's own statistics, as well as the cases discussed in this Article demonstrate, Justice Rehnquist - while hardly a moderate - was not as "unyielding" as Justices Brennan and Marshall, at least as to the Fourth Amendment. See also Craig M. Bradley, Criminal Procedure in the Rehnquist Court: Has the Rehnquisition Begun?, 62 IND. L. J. 273 (1987).
365. Justice Rehnquist has frequently been criticized along the lines expressed by David Shapiro, that "the unyielding character of his ideology has had a substantial adverse effect on his judicial product." David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 HARV. L. REV. 293, 293 (1976). However, as Shapiro's own statistics, as well as the cases discussed in this Article demonstrate, Justice Rehnquist - while hardly a moderate - was not as "unyielding" as Justices Brennan and Marshall, at least as to the Fourth Amendment. See also Craig M. Bradley, Criminal Procedure in the Rehnquist Court: Has the Rehnquisition Begun?, 62 IND. L. J. 273 (1987).
366. The few cases include Pennsylvania v. Muniz, 496 U.S. 582 (1990), where Justice Brennan, but not Justice Marshall, exempted "routine booking questions" from the scope of Miranda, id. at 601-02 (plurality opinion); Illinois v. Perkins, 496 U.S. 292 (1990), where Justice Brennan, but not Justice Marshall, concluded that use of a jailhouse plant does not implicate Miranda (but likely violates due process), id. at 300-03 (Brennan, J., concurring); Berkemer v. McCarty, 468 U.S. 420 (1984), where Justices Brennan and Marshall agreed that Miranda does not apply to a brief traffic stop, id. at 435-42; South Dakota v. Neville, 459 U.S. 553 (1983), where Justice Brennan, but not Justice Marshall, agreed that asking a suspect to take a blood-alcohol test was not interrogation under Miranda, id. at 564 n.15 (citing Rhode Island v. Innis, 496 U.S. 291, 301 (1980)); and Michigan v. Tucker, 417 U.S. 433 (1974), where Justices Brennan and Marshall wrote that Miranda should not be applied retroactively to exclude the fruits of a pre-Miranda interrogation, id. at 453-58 (Brennan, J., concurring).
367. See Wainwright v. Sykes, 433 U.S. 72 (1977) (Brennan, J., dissenting).
368. Justice Marshall's experiences in the civil rights movement are well known. Less well known is that Justice Brennan, as a ten-year-old, witnessed his father, a union organizer, carried home by his comrades, beaten and bloody, after an encounter with the Newark, New Jersey police. KIM I. EISLER, A JUSTICE FOR ALL 19 (1993).
369. See Craig M. Bradley, The Changing Face of Criminal Procedure, TRIAL, Oct. 1999, at 84 (comparing City of Chicago v. Morales, 527 U.S. 41, 48 (1999) (striking down, reluctantly, an antiloitering ordinance demanded by inner-city residents, with helpful suggestions for redrafting), with Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (striking down a similar ordinance to discourage '"harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure"' (quoting Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)))); see also Tracey L. Meares & Dan M. Kahan, Law and Norms of Order in the Inner City, 32 LAW & SOC'Y REV. 805, 805 (1998) (noting that although the crime tide is receding nationally, America's predominantly minority inner-city neighborhoods remain awash in violent lawbreaking).
370. See Craig M. Bradley, The Changing Face of Criminal Procedure, TRIAL, Oct. 1999, at 84 (comparing City of Chicago v. Morales, 527 U.S. 41, 48 (1999) (striking down, reluctantly, an antiloitering ordinance demanded by inner-city residents, with helpful suggestions for redrafting), with Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (striking down a similar ordinance to discourage '"harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure"' (quoting Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)))); see also Tracey L. Meares & Dan M. Kahan, Law and Norms of Order in the Inner City, 32 LAW & SOC'Y REV. 805, 805 (1998) (noting that although the crime tide is receding nationally, America's predominantly minority inner-city neighborhoods remain awash in violent lawbreaking).
371. See, e.g., Ohio v. Robinette, 519 U.S. 33 (1996) (8-1 decision) (holding that police may seek consent to search a car after a traffic stop without telling the motorist he is free to go); Whren v. United States, 517 U.S. 806 (1996) (unanimousdecision) (upholdingpretextual stops of cars by police). In Robinette, only Justice Stevens dissented. Robinette, 519 U.S. at 45 (Stevens, J., dissenting). Justice Ginsburg concurred in the result, agreeing that the Fourth Amendment contained no such requirement, but suggesting, áe la Justice Brennan, that Ohio could base such a right on the Ohio constitution. Id. at 40-45 (Ginsburg, J., concurring). But cf. Knowles v. Iowa, 525 U.S. 113 (1998) (unanimously striking down Iowa law allowing the police to "search incident to arrest" if they have probable cause, even if there was no arrest). Such agreement on Fourth Amendment issues - going both ways - never occurred during the period from 1972 until Justices Brennan and Marshall retired.
372. Of course, it could be argued that the only reason that these relatively moderate Justices were appointed, rather than "true liberals," was because a "true liberal" could not have gotten past a hostile Senate. But it is surely the case that "true liberals" are not as thick on the ground as during the 1960s and 1970s.
373. William J. Brennan, State Constitutions and the Protection of Individuals Rights, 90 HARV. L. REV. 489 (1977).
374. Justice Brennan reiterated these views nine years later in William J. Brennan, The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535 (1986).
375. One might suppose that it was different states that Justice Brennan mistrusted from the ones he was addressing in the Harvard article. But this was not so. For example, in one portion of the article he cited Hawaii, California, Michigan, South Dakota, and Maine as states with admirable decisions advancing the rights of criminal defendants. Brennan, supra note 363, at 500. But, with the exception of Hawaii, the Supreme Courts of all of the above states also had issued criminal procedure rulings, discussed above, which Justice Brennan condemned.
376. For example, it was Justice Brennan who convinced Chief Justice Warren to not "prescribe rigid rules" in Miranda but to allow the states "latitude to devise other means" to protect the right against self-incrimination. EISLER, supra note 359, at 195. Ironically, this language was used by the Republican Court to undermine the constitutional force of Miranda. See supra notes 341-43 and accompanying text.
377. For example, Justice Brennan wrote the pro-police majority opinion in Warden v. Hayden, 387 U.S. 294 (1967), which abandoned the mere-evidence limitation on what incriminating material police could seize, but also suggested that there might be some "items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure." Id. at 303. Likewise, in Schmerber v. California, 384 U.S. 757 (1966), Justice Brennan wrote the 5-4 majority opinion allowing the compelled extraction of blood from a drunk-driving suspect. Id at 768.
378. That is, in a case such as Oliver v. United States, 466 U.S. 170 (1984), the police may well have had, or could have acquired, probable cause before they trespassed onto the suspect's land, but they were never forced to make this showing. See supra text accompanying notes 23-28. Since it is rarely the case that police waste resources conducting suspicionless, random investigations, it may well be that a probable cause showing would not ordinarily be difficult to make.
379. See, e.g., Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1499 (1985) (arguing that the police could easily radio for search warrants prior to conducting automobile searches, for which they must already have probable cause under current law). Such search warrants are available under FED. R. CRIM. P. 41(c)(2).
380. See, e.g., Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1499 (1985) (arguing that the police could easily radio for search warrants prior to conducting automobile searches, for which they must already have probable cause under current law). Such search warrants are available under FED. R. CRIM. P. 41(c)(2).
381. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1064-65 (1995). But cf. Lloyd Weinreb, Generalities of the Fourth Amendment, 42 U. CHI. L. REV. 47, 57-58 (1974) (arguing that only when there is some technical difficulty with obtaining a warrant, such as the unavailability of the magistrate, should unwarned consent searches be allowed).
382. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1064-65 (1995). But cf. Lloyd Weinreb, Generalities of the Fourth Amendment, 42 U. CHI. L. REV. 47, 57-58 (1974) (arguing that only when there is some technical difficulty with obtaining a warrant, such as the unavailability of the magistrate, should unwarned consent searches be allowed).
383. We are, of course, aware of the continuing controversy on this point. Compare Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. REV. 387 (1996) (arguing Miranda has discouraged confessions), with Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Costs, 90 Nw. U. L. REV. 500 (1996) (arguing Miranda has not significantly discouraged confessions).
384. We are, of course, aware of the continuing controversy on this point. Compare Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. REV. 387 (1996) (arguing Miranda has discouraged confessions), with Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Costs, 90 Nw. U. L. REV. 500 (1996) (arguing Miranda has not significantly discouraged confessions).
385. 412 U.S. 218 (1983).
386. Id. at 287 (Marshall, J., dissenting).
387. Contra United States v. Matlock, 415 U.S. 164 (1974) (Douglas, J., dissenting); supra text accompanying notes 66-68.
388. They would have required such a warning except in the rare case where the defendant's knowledge of the right to refuse could otherwise be established by the police. See Schenckloth, 412 U.S. at 229-30.
389. It is, of course, also true that the breakdown of law and order foretold by the Warren Court dissenters, see, e.g., Miranda v. Arizona, 384 U.S. 436, 534-45 (1996) (White, J., dissenting), did not come to pass.
390. It would be possible, and perhaps desirable, to regulate other searches in some way short of requiring a warrant, but this was not Justices Brennan's and Marshall's position.
391. But cf. Craig M. Bradley, Pennsylvania v. Scott.- No Fourth Amendment Protection for Parolees, TRIAL, Apr. 1999, at 89 (arguing that the exclusionary remedy should be available at parole and probation revocation proceedings where loss of liberty is at stake).
392. Moran v. Burbine, 475 U.S. 412 (1986); see supra text accompanying notes 254-75.
393. Professor Kamisar likewise agrees that the majority position in Burbine is a "plausible and defensible reading of Miranda." Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 TULSA L.J. 465, 465-66 (1999). Moreover, he argues that the Republican Court was too "suspect friendly" in Minnick v. Mississippi, 498 U.S. 146 (1990), when it extended Edwards to bar police from seeking further statements from a suspect after he has spoken to counsel. Yale Kamisar, The Warren Court and Criminal Justice, in THE WARREN COURT: A RETROSPECTIVE 116, 125 (Bernard Schwartz ed., 1996). This is a view that we share.
394. Professor Kamisar likewise agrees that the majority position in Burbine is a "plausible and defensible reading of Miranda." Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 TULSA L.J. 465, 465-66 (1999). Moreover, he argues that the Republican Court was too "suspect friendly" in Minnick v. Mississippi, 498 U.S. 146 (1990), when it extended Edwards to bar police from seeking further statements from a suspect after he has spoken to counsel. Yale Kamisar, The Warren Court and Criminal Justice, in THE WARREN COURT: A RETROSPECTIVE 116, 125 (Bernard Schwartz ed., 1996). This is a view that we share.
395. England, for example, requires tape recording of suspects' statements, and failure to tape record may lead to evidentiary exclusion. David J. Feldman, England and Wales, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 91, 109 (Craig M. Bradley ed., 1999) [hereinafter A WORLDWIDE STUDY]. Of course, such a requirement is hardly foolproof, as Professor Ogletree has pointed out. See Ogletree, supra note 197, at 1843 n.94 (arguing that street videotaping is impractical and that in any case, police can "manipulate statements" made without counsel). Nevertheless, it would surely be helpful.
396. In England, for example, "stratagems designed to induce a confession by bringing psychological pressure to bear" are permitted as long as they aren't "oppressive." Craig M. Bradley, The Emerging International Consensus as to Criminal Procedure Rules, 14 MICH. J. INT'L L. 171, 185 (1993) (quoting David J. Feldman, Regulating Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence Act of 1984, 1990 CRIM. L. REV. 452, 464). In Canada, "police may legitimately lie and engage in deception in order to obtain statements." Kent W. Roach, Canada, in A WORLDWIDE STUDY, supra note 381, at 53, 70. Canada is strict about giving suspects access to counsel upon arrest, (not just the empty Miranda-type warning of the United States) but "[o]nce an accused has been given a reasonable opportunity to consult counsel, questioning may resume without again informing the accused of the right to counsel or providing another reasonable opportunity to consult counsel." Id. at 69.
397. In England, for example, "stratagems designed to induce a confession by bringing psychological pressure to bear" are permitted as long as they aren't "oppressive." Craig M. Bradley, The Emerging International Consensus as to Criminal Procedure Rules, 14 MICH. J. INT'L L. 171, 185 (1993) (quoting David J. Feldman, Regulating Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence Act of 1984, 1990 CRIM. L. REV. 452, 464). In Canada, "police may legitimately lie and engage in deception in order to obtain statements." Kent W. Roach, Canada, in A WORLDWIDE STUDY, supra note 381, at 53, 70. Canada is strict about giving suspects access to counsel upon arrest, (not just the empty Miranda-type warning of the United States) but "[o]nce an accused has been given a reasonable opportunity to consult counsel, questioning may resume without again informing the accused of the right to counsel or providing another reasonable opportunity to consult counsel." Id. at 69.
398. In England, for example, "stratagems designed to induce a confession by bringing psychological pressure to bear" are permitted as long as they aren't "oppressive." Craig M. Bradley, The Emerging International Consensus as to Criminal Procedure Rules, 14 MICH. J. INT'L L. 171, 185 (1993) (quoting David J. Feldman, Regulating Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence Act of 1984, 1990 CRIM. L. REV. 452, 464). In Canada, "police may legitimately lie and engage in deception in order to obtain statements." Kent W. Roach, Canada, in A WORLDWIDE STUDY, supra note 381, at 53, 70. Canada is strict about giving suspects access to counsel upon arrest, (not just the empty Miranda-type warning of the United States) but "[o]nce an accused has been given a reasonable opportunity to consult counsel, questioning may resume without again informing the accused of the right to counsel or providing another reasonable opportunity to consult counsel." Id. at 69.
399. All of the other countries studied have codes of criminal procedure rather than relying on the interpretation of court decisions to discern the rules that police must follow. Exclusion is generally discretionary with the trial judge, but this does not mean that it is never (or almost never) employed, especially in England and Canada where such exclusion is relatively common, though still far less common than in the United States. See generally A WORLDWIDE STUDY, supra note 381. The book further argues that the more diverse a country is, the more stringent and specific its rules of criminal procedure should be. Id. at xxi.
400. See, e.g., Police Seize Truckload of Cocaine, BLOOMINGTON HERALD-TIMES, July 6, 1999, at C8.
401. This position is the gravamen of CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION (1993).