Local Policing after the Terror

Yale Law Journal

Volumn 111, Issue 8, 2002, Pages 2137-2194

  Stuntz, William J ^a  

^a NONE

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EID: 0347617357     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797644     Document Type: Review

References (212)

1. According to FBI figures, there were 15,517 murders in 2000, almost exactly the same as the 15,522 murders in 1999. Press Release, Fed. Bureau of Investigation, Crime in the United States, 2000 (Oct. 22, 2001), http://www.fbi.gov/pressrel/pressrel01/cius2000.htm. Assuming a similar figure absent what happened on September 11, the more than 3000 people killed in the attacks on that date would represent a twenty percent increase. See Associated Press, Official Count of Sept. 11 Victims, N.Y. TIMES, Apr. 8, 2002, at http://www.nytimes.com/aponline/ national/AP-Attacks-Toll-Box.html (placing the official count of the victims at 3062). The official count is likely to understate the number of deaths because illegal immigrants who died in the World Trade Center collapse may never be counted. See Charlie LeDuff, For Some, Lives in the Shadows Ended in Attack, Indiscernibly, N.Y. TIMES, Dec. 30, 2001, § 1B, at 1.
2. The major piece of legislation thus far is the Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 [hereinafter USA PATRIOT Act].
3. See SOURCEBOOK OF CRIMINAL JUSTTCE STATISTICS - 1998, at 31 tbl.1.2 (Kathleen Maguire & Ann L. Pastore eds., 1999) (showing 747,878 state and local police full-time equivalents); Daniel C. Richman, The Changing Boundaries Between Federal and Local Law Enforcement, 2 CRIM. JUST. 81, 82 (2000), http://www.ojp.usdoj.gov/nij/criminal_justice2000/ vol2_2000.html (showing that roughly 75,000 officers work for some federal law enforcement agency).
4. See SOURCEBOOK OF CRIMINAL JUSTTCE STATISTICS - 1998, at 31 tbl.1.2 (Kathleen Maguire & Ann L. Pastore eds., 1999) (showing 747,878 state and local police full-time equivalents); Daniel C. Richman, The Changing Boundaries Between Federal and Local Law Enforcement, 2 CRIM. JUST. 81, 82 (2000), http://www.ojp.usdoj.gov/nij/criminal_justice2000/ vol2_2000.html (showing that roughly 75,000 officers work for some federal law enforcement agency).
5. See infra notes 132-138 and accompanying text.
6. See, e.g., Clyde Haberman, Visions of a Long Struggle, Strains on Police and Help for Victims, N.Y. TIMES, Oct. 27, 2001, § 1B, at 1 ("Forced to respond to anthrax reports, bomb scares and the like, the police are now rethinking how much effort they can spend on the tactics that reduce crime."); Michael Janofsky, A Nation Challenged: The Police; Anthrax Scares Are Stretching Thin Blue Line, N.Y. TIMES, Oct. 18, 2001, at B10 (noting budget strains in several police departments due to responses to anthrax scares and extra security at public events).
7. See, e.g., Clyde Haberman, Visions of a Long Struggle, Strains on Police and Help for Victims, N.Y. TIMES, Oct. 27, 2001, § 1B, at 1 ("Forced to respond to anthrax reports, bomb scares and the like, the police are now rethinking how much effort they can spend on the tactics that reduce crime."); Michael Janofsky, A Nation Challenged: The Police; Anthrax Scares Are Stretching Thin Blue Line, N.Y. TIMES, Oct. 18, 2001, at B10 (noting budget strains in several police departments due to responses to anthrax scares and extra security at public events).
8. See Fox Butterfield, Killings Increase in Many Big Cities, N.Y. TIMES, Dec. 21, 2001, at A1 (noting post-September 11 rises in crime in New York, Baltimore, and Washington); Haberman, supra note 5 (noting a sharp rise in homicides in Philadelphia in September 2001, with Philadelphia's police commissioner blaming the rise on the need to shift narcotics detectives to street patrol in Center City). Even if the diversion of police resources does not cause a general rise in crime, it may reinforce a crime rise that was already underway before September 11. See Butterfield, supra (noting sharp rises in homicides in a number of other major cities during 2001).
9. The Fourth Amendment requires probable cause for most searches and seizures; that standard incorporates the entire criminal code without differentiation. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (authorizing custodial arrest for the nonjailable crime of driving without a seat belt). The Fifth Amendment's privilege against self-incrimination applies whenever a witness is compelled to answer questions that, if answered truthfully, might submit him to criminal liability. What is "criminal" for these purposes depends on the legislature's classification. See, e.g., United States v. Ward, 448 U.S. 242 (1980) (holding that the line between criminal and noncriminal offenses is one of statutory interpretation).
10. The best and most famous bemoaning comes not from a scholar but from a Supreme Court Justice: [I]f we are to make judicial exceptions to the Fourth Amendment . . . , it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting). For more contemporary variations on this theme, see Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642 (1998); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271; and William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842 (2001) [hereinafter Stuntz, Simpson and Clinton]. For a similar argument directed not only to the Fourth Amendment but also to the whole of criminal procedure, see William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1 (1996).
11. The best and most famous bemoaning comes not from a scholar but from a Supreme Court Justice: [I]f we are to make judicial exceptions to the Fourth Amendment . . . , it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting). For more contemporary variations on this theme, see Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642 (1998); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271; and William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842 (2001) [hereinafter Stuntz, Simpson and Clinton]. For a similar argument directed not only to the Fourth Amendment but also to the whole of criminal procedure, see William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1 (1996).
12. The best and most famous bemoaning comes not from a scholar but from a Supreme Court Justice: [I]f we are to make judicial exceptions to the Fourth Amendment . . . , it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting). For more contemporary variations on this theme, see Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642 (1998); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271; and William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842 (2001) [hereinafter Stuntz, Simpson and Clinton]. For a similar argument directed not only to the Fourth Amendment but also to the whole of criminal procedure, see William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1 (1996).
13. The best and most famous bemoaning comes not from a scholar but from a Supreme Court Justice: [I]f we are to make judicial exceptions to the Fourth Amendment . . . , it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting). For more contemporary variations on this theme, see Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642 (1998); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271; and William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842 (2001) [hereinafter Stuntz, Simpson and Clinton]. For a similar argument directed not only to the Fourth Amendment but also to the whole of criminal procedure, see William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1 (1996).
14. For purposes of my argument, groups are defined by time and place, not by demographic category. Thus, the temporary seizure of all cars passing through a given intersection on a given afternoon is a "group seizure," as I use that phrase. The seizure of all young men of Middle Eastern origin, without regard to time or place, is not.
15. As the assumption is usually both implicit and undefended, the point is hard to prove. In the case law, the best examples are the two cases from which modern Fourth and Fifth Amendment doctrines spring: Mapp v. Ohio, 367 U.S. 643 (1961), and Miranda v. Arizona, 384 U.S. 436 (1966). Both Mapp and Miranda rest their (revolutionary) holdings on arguments that stand outside context - Mapp, on the "imperative of judicial integrity," 367 U.S. at 659 (internal quotation marks omitted); Miranda, on the proposition that confessions made by a suspect uninformed of his rights are necessarily compelled. To be sure, the Miranda Court did care a great deal about context in one sense: The bulk of the Court's opinion is devoted to establishing that a particular context, stationhouse questioning, is inherently coercive. But the key is the word "inherently." Nothing in Miranda (and nothing in Mapp) suggests that the result should change if social circumstances changed. Much has changed in Fourth and Fifth Amendment law since Mapp and Miranda, but this feature of the Court's decisions - more precisely, of the Court's rhetoric - has been remarkably durable. The best evidence of this is the noteworthiness of the occasional exceptions, cases in which one or more Justices actually say that the rule should perhaps be different if circumstances change. E.g., United States v. Leon, 468 U.S. 897, 927 (1984) (Blackmun, J., concurring) (noting the "unavoidably provisional nature" of the Court's decision). For the Court, this posture is basically rhetorical. Social context matters, but stays under the table; opinions must be couched in terms of acontextual principle. For scholars, the idea runs deeper - though more so for the Fourth Amendment than for Miranda. With respect to police interrogation, there has been a lively debate about empirics, see Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 MICH. L. REV. 1000 (2001) (summarizing that debate), but the Fourth Amendment literature has not shared that empirical orientation. In that literature, the facts of the cases tend to matter a lot, but the facts in a broader sense - the effects of different legal rules under different social circumstances - tend to matter a good deal less. For a strong and persuasive criticism of the literature on this point, see Ronald J. Allen & Ross M. Rosenberg, The Fourth Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72 ST. JOHN'S L. REV. 1149 (1998).
16. As the assumption is usually both implicit and undefended, the point is hard to prove. In the case law, the best examples are the two cases from which modern Fourth and Fifth Amendment doctrines spring: Mapp v. Ohio, 367 U.S. 643 (1961), and Miranda v. Arizona, 384 U.S. 436 (1966). Both Mapp and Miranda rest their (revolutionary) holdings on arguments that stand outside context - Mapp, on the "imperative of judicial integrity," 367 U.S. at 659 (internal quotation marks omitted); Miranda, on the proposition that confessions made by a suspect uninformed of his rights are necessarily compelled. To be sure, the Miranda Court did care a great deal about context in one sense: The bulk of the Court's opinion is devoted to establishing that a particular context, stationhouse questioning, is inherently coercive. But the key is the word "inherently." Nothing in Miranda (and nothing in Mapp) suggests that the result should change if social circumstances changed. Much has changed in Fourth and Fifth Amendment law since Mapp and Miranda, but this feature of the Court's decisions - more precisely, of the Court's rhetoric - has been remarkably durable. The best evidence of this is the noteworthiness of the occasional exceptions, cases in which one or more Justices actually say that the rule should perhaps be different if circumstances change. E.g., United States v. Leon, 468 U.S. 897, 927 (1984) (Blackmun, J., concurring) (noting the "unavoidably provisional nature" of the Court's decision). For the Court, this posture is basically rhetorical. Social context matters, but stays under the table; opinions must be couched in terms of acontextual principle. For scholars, the idea runs deeper - though more so for the Fourth Amendment than for Miranda. With respect to police interrogation, there has been a lively debate about empirics, see Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 MICH. L. REV. 1000 (2001) (summarizing that debate), but the Fourth Amendment literature has not shared that empirical orientation. In that literature, the facts of the cases tend to matter a lot, but the facts in a broader sense - the effects of different legal rules under different social circumstances - tend to matter a good deal less. For a strong and persuasive criticism of the literature on this point, see Ronald J. Allen & Ross M. Rosenberg, The Fourth Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72 ST. JOHN'S L. REV. 1149 (1998).
17. Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449 (1985).
18. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) ("[W]e must never forget that it is a constitution we are expounding.").
19. E.g., Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J. 1055, 1084 (1972).
20. More to the point, if the police have no effect on crime, we should seriously think about whether we want to have police forces in the first place.
21. See Steven D. Levitt, Using Electoral Cycles in Police Hiring To Estimate the Effect of Police on Crime, 87 AM. ECON. REV. 270 (1997); Thomas B. Marvell & Carlisle E. Moody, Specification Problems, Police Levels, and Crime Rates, 34 CRIMINOLOGY 609 (1996).
22. See Steven D. Levitt, Using Electoral Cycles in Police Hiring To Estimate the Effect of Police on Crime, 87 AM. ECON. REV. 270 (1997); Thomas B. Marvell & Carlisle E. Moody, Specification Problems, Police Levels, and Crime Rates, 34 CRIMINOLOGY 609 (1996).
23. I have elaborated on this point elsewhere. See William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 GEO. WASH. L. REV. 1265, 1274-77 (1999).
24. See Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 GEO. L.J. 19, 63-67 (1988).
25. This is a variant on a familiar argument. One might say that more government power always means less private power, and vice versa. "Rights" questions are thereby transformed into tradeoffs: Which kind of institution do you want pushing you around, a private corporation or a government agency? I am sympathetic to this line of argument generally, but even those who do not usually sympathize with it should do so here; the argument is more powerful in criminal procedure than in other settings. Take free speech rights. Banning government prohibitions on, say, peaceful picketing does not have the natural effect of increasing restraints on speech by private actors. It simply means fewer restraints on speech. The same is true of a rule barring the criminalization of some kinds of political views. Again, such a rule does not tend to produce equivalent private limits, but simply produces more freedom. (Campaign finance regulation is an exception to this pattern.) Many rights controversies work that way; they are not tradeoffs between restraint from one source and restraint from another, but are simply choices about whether to have more restraint or less. Criminal procedure is different because tradeoffs are the rule, not the exception - and the same interests are being traded off for one another. Reduce police power to search, seize, and arrest, and you reduce the cost of committing the crimes police investigate, which will tend to mean that more such crimes are committed. The same is true of restrictions on police interrogation. To be sure, sometimes police can be given more authority without taking away individual freedom - in Part II of this Essay, I suggest several legal changes that would, I believe, lead to gains in both law enforcement power and individual liberty. Other changes are positive-sum, in the sense that the gains in freedom on one side outweigh the losses on the other. But for most changes, one can reasonably start with the following pair of assumptions; There are both gains and losses, and they are in the same currency. In such a world, to choose legal rules without reference to the tradeoffs seems akin to madness.
26. There is good reason to believe that hiring more police officers does indeed tend to reduce crime. See sources cited supra note 15.
27. See, e.g., Richard A. Leo, From Coercion to Deception: The Changing Nature of Police Interrogation in America, in THE MIRANDA DEBATE 65 (Richard A. Leo & George C. Thomas III eds., 1998).
28. On balance, centralization is probably a bad thing. It tends to increase the role of legal theory in the law of criminal procedure, which raises error costs. See Allen & Rosenberg, supra note 10. It also increases the importance of the Supreme Court, which likewise raises error costs, given the Justices' limited understanding of local criminal justice systems. Nevertheless, for all its flaws, centralization does have one large advantage - it permits easy adaptation to changed circumstances. This point is not limited to the law of criminal procedure. Constitutional law generally is remarkably centralized, and hence unusually adaptable to changed circumstances. One implication may be that even a weak norm of stare decisis is a bad idea in constitutional litigation. Those judges and academics who seek stability in constitutional doctrine are giving away one of the system's largest virtues.
29. See, e.g., Monroe v. Pape, 365 U.S. 167 (1961) (broadening damages liability for constitutional violations); Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to state cases); Massiah v. United States, 377 U.S. 201 (1964) (banning some forms of uncounseled police questioning); Malloy v. Hogan, 378 U.S. 1 (1964) (applying the privilege against self-incrimination to state cases); Beck v. Ohio, 379 U.S. 89 (1964) (enforcing the probable-cause-to-arrest standard); Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) (invalidating a vague loitering law); Miranda v. Arizona, 384 U.S. 436 (1966) (instituting a system of warning and waiver rules to govern custodial police interrogation). This list includes only cases that substantially affected the liability rules or remedies for police misconduct; if one broadens the field of vision to include the rest of criminal procedure, the list is much longer. See infra notes 166-176 and accompanying text. Among other things, the cases just cited show that multimember appellate courts are capable of manipulating a number of legal variables simultaneously, or nearly so.
30. See supra note 3.
31. It is also a process in which politics intervenes in some inconvenient ways. A healthy adaptation of police budgets to circumstances would see more officers hired when crime goes up and some attrition of the police force when crime goes down. The best study of police hiring and crime rates suggests that police hiring responds not to changes in crime but to election cycles. See Levitt, supra note 15.
32. Historians generally use homicide rates as a proxy for rates of serious crime because homicide data are so much better than data for other crimes. Eric Monkkonen has shown that New York City's homicide rate was lower than the homicide rate for the United States as a whole until the late 1950s; since then, New York's homicide rate, which is not among the highest of American cities', has been vastly higher than the rate for the rest of the country. See Eric Monkkonen, Homicide over the Centuries, in THE CRIME CONUNDRUM 163, 166-67 & fig. 1 (Lawrence M. Friedman & George Fisher eds., 1997).
33. Minnick v. Mississippi, 498 U.S. 146 (1990); Edwards v. Arizona, 451 U.S. 477 (1981).
34. The best study to date finds a waiver rate of just under eighty percent. See Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 653 (1996).
35. Most of the leading Supreme Court cases on the subject follow this fact pattern. See Draper v. United States, 358 U.S. 307 (1959); Illinois v. Gates, 462 U.S. 213 (1983); Alabama v. White, 496 U.S. 325 (1990). The two major exceptions are Spinelli v. United States, 393 U.S. 410 (1969), where the crime was gambling instead of drugs, and Florida v. J.L., 529 U.S. 266 (2000), where the alleged behavior - possession of a concealed weapon - was not necessarily a crime at all. Perhaps it is more than a coincidence that the defendants in Spinelli and J.L. won, while their counterparts in the three drug cases - Draper, Gates, and While - lost.
36. See RICHARD VAN DUIZEND ET AL., THE SEARCH WARRANT PROCESS 33, 44 tbl.2-14 (1985).
37. For the sake of simplicity, I have cut a few corners in the text. For a more detailed discussion of why corroboration is the key issue, see William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881, 929-32 (1991).
38. 393 U.S. at 413-19, overruled by Gates, 462 U.S. 213. The Spinelli Court did not squarely say that corroboration of the innocent details would not suffice to validate the tip - it would have been hard for the Court to say that without overruling Draper v. United States, 358 U.S. 307 (1958), in which such corroboration did validate the tip. But Spinelli came close, by finding the corroboration in that case (description of the suspect's travel pattern, use of an apartment other than his dwelling, and the apartment's two phone numbers) insufficient.
39. See MICHAEL J. HINDELANG ET AL., U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1973, at 325 tbl.5.32 (1973).
40. See NAT'L CTR. FOR STATE COURTS, STATE COURT CASELOAD STATISTICS: ANNUAL REPORT 1984, at 189-90 tbl.35 (1986) (showing a thirty-six percent increase in felony filings from 1978 to 1984).
41. Between 1968 and 1988, drug arrests more than quintupled. See Robert Reinhold, Police, Hard Pressed in Drug War, Are Turning to Preventive Efforts, N.Y. TIMES, Dec. 28, 1989, at A1.
42. The most common end-run was to find that a strong showing on one of Spinelli's two prongs (the informant's veracity and her basis of knowledge) could overcome a weak showing on the other. See, e.g., United States v. Sellers, 483 F.2d 37 (5th Cir. 1973); United States v. Crawford, 462 F.2d 597 (9th Cir. 1972). This move effectively made the two prong test into an either-one-or-the-other-prong test, which was a good deal easier for the government to satisfy.
43. See Gates, 462 U.S. 213.
44. On the fall in crime, see, for example, Monkkonen, supra note 25, at 166-69. On the post-1960 rise, the FBI's index crime numbers (the only source of nationwide crime data we have for the relevant time period) tell the story. The number of index crimes per 100,000 population in 1960 was 1126. FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1972, at 61 tbl.2 (1973) [hereinafter 1972 UNIFORM CRIME REPORTS]. In the 1970s, the method used for calcuating the number of index crimes was changed, FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1973, at 1 (1974); if one adjusts the 1960 figure accordingly, the rate rises to 1614. In 1999, after a decade in which index crimes had fallen by moer than a quarter, the figure was 4267. FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1999, at 64 tbl.1 (2000), http://www.fbi.gov/ucr/Cius_99/99crime/99c2_13.pdf. Even if one makes a generous allowance for changes in reporting practices, the difference is enormous.
45. See Mapp v. Ohio, 367 U.S. 643 (1961).
46. See Monroe v. Pape, 365 U.S. 167 (1961).
47. See 1972 UNIFORM CRIME REPORTS, supra note 37, at 61 tbl.2.
48. Id. (showing a rise in violent crimes from 286,880 in 1961 to 590,160 in 1968). It is tempting to conclude that these numbers reflect changes in reporting practices rather than a sharp rise in crime. And it is true that homicides, which are less subject to variations in reporting, rose less sharply during the same period, though the rise was still significant. Id. (showing a rise in the number of murders and nonnegligent manslaughters from 8660 in 1961 to 13,690 in 1968). On the other hand, auto thefts, which likewise are reported fairly consistently - victims need to report the thefts in order to collect on their insurance - rose even faster than violent crimes, from 333,700 in 1961 to 778,200 in 1968. Id.
49. 392 U.S. 1 (1968). One could argue that Terry was not really a pro-police decision because the effective baseline before that case was not the probable cause standard. It had long been the case that police officers were able to stop and even arrest suspects without probable cause to believe the suspects had committed a "real" crime - the sort of crime for which offenders are frequently punished. See William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE L.J. 1 (I960) (criticizing this state of affairs). By the time Terry was decided, courts were invalidating vagrancy and loitering laws, leaving a lot of searches and seizures subject to a serious probable cause standard where previously there had been no standard at all. Ohio, like a number of other states, felt a need to authorize stops and frisks through the statute challenged in Terry precisely because those stops and frisks were otherwise not authorized. In short, though the constitutional baseline against which Terry was decided was a moving target, the movement was very much in the direction of greater protection for suspects. Terry halted, and perhaps reversed, the movement.
50. See 392 U.S. at 10-15 (discussing the limits of the law's ability to rein in police misbehavior). On this score, it is helpful to compare Warren's opinion in Terry with his majority opinion in Miranda v. Arizona, 384 U.S. 436 (1966). Miranda is confident and aggressive; it betrays no concern for the cost or difficulty of the enterprise of regulating police interrogation. Terry is almost entirely about the cost and difficulty of regulating street stops. One cannot read the two opinions without sensing that something in the author's thinking changed between 1966 and 1968.
51. 384 U.S. 436. The only change in personnel between Miranda and Terry was Tom Clark's resignation and Thurgood Marshall's appointment.
52. 367 U.S. 643 (1961). The Court that decided Mapp included six of the Justices who decided Terry: Warren, Black, Douglas, Harlan, Brennan, and Stewart. The other three Justices in 1961 were Frankfurter, Clark, and Whittaker. The other three Justices in 1968 were White, Fortas, and Marshall. That the Terry Court was somewhere to the left of the Mapp Court, at least in terms of its members' overall judicial ideologies, seems beyond serious argument.
53. Earl C. Dudley, Jr., Terry v. Ohio, the Warren Court, and the Fourth Amendment: A Law Clerk's Perspective, 72 ST. JOHN'S L. REV. 891, 893 (1998).
54. In Terry, the suspected crime was robbery. 392 U.S. at 28. On the application of Terry's analysis to suspected drug crime, see, for example, Alabama v. White, 496 U.S. 325 (1990). On its application to minor crimes, see Delaware v. Prouse, 440 U.S. 648, 663 (1979), where the Court states that a reasonable suspicion that a driver is driving with an expired license would justify a stop.
55. See United States v. Hensley, 469 U.S. 211 (1985).
56. See Florida v. Bostick, 501 U.S. 429 (1991); Schneckloth v. Bustamante, 412 U.S. 218 (1973).
57. See Monkkonen, supra note 25, at 166-67 & fig.1.
58. 399 U.S. 42 (1970).
59. 500 U.S. 565 (1991).
60. The key exception to the warrant requirement is the one for searches incident to arrest. See, e.g., United States v. Robinson, 414 U.S. 218 (1973). That doctrine allows the police to search the person and belongings of anyone who the police have probable cause to believe has committed a crime. Since crimes can include such things as traffic offenses, see Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (approving custodial arrest for the offense of driving without a seat belt), this power gives the police the ability to search, without a warrant, almost anyone in a vehicle, plus (depending on the stringency of local curfews and quality-of-life ordinances) a large portion of the pedestrian population to boot.
61. In 1960, the number of index crimes per 100,000 population was 1126; if one recalculates that number to take account of a change in measurement in 1972, the figure rises to 1614 See supra note 37. In 1976, the number of index crimes per 100,000 population was 5266 - either more than triple or more than quadruple the crime rate in 1960, depending on which figure one uses. FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED STATES -1976, at 35 (1977) [hereinafter 1976 UNIFORM CRIME REPORTS]. The number of personnel in police departments - a good proxy for police budgets - grew much more slowly. In 1961 the number of tull-time police department employees per 1000 population was 1.9. FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1961, at 109 (1962). By 1976, that number had risen only to 2.5. 1976 UNIFORM CRIME REPORTS, supra, at 224 tbl.58.
62. 527 U.S. 41 (1999). Chicago responded to Morales by enacting a new gang-loitering ordinance, see CHICAGO, ILL., MUNICIPAL CODE § 8-4-015 (2000), but it may well be unconstitutional. See Jocelyn L. Santo, Note, Down on the Corner: An Analysis of Gang-Related Antiloitering Laws, 22 CARDOZO L. REV. 269, 271 (2000) (noting that "[v]ery few antiloitering ordinances have . . . survived constitutional challenges"). For a defense of the new ordinance by one of its drafters, see Lawrence Rosenthal, Gang Loitering and Race, 91 J. CRIM. L. & CRIMINOLOGY 99 (2000).
63. 527 U.S. 41 (1999). Chicago responded to Morales by enacting a new gang-loitering ordinance, see CHICAGO, ILL., MUNICIPAL CODE § 8-4-015 (2000), but it may well be unconstitutional. See Jocelyn L. Santo, Note, Down on the Corner: An Analysis of Gang-Related Antiloitering Laws, 22 CARDOZO L. REV. 269, 271 (2000) (noting that "[v]ery few antiloitering ordinances have . . . survived constitutional challenges"). For a defense of the new ordinance by one of its drafters, see Lawrence Rosenthal, Gang Loitering and Race, 91 J. CRIM. L. & CRIMINOLOGY 99 (2000).
64. 527 U.S. 41 (1999). Chicago responded to Morales by enacting a new gang-loitering ordinance, see CHICAGO, ILL., MUNICIPAL CODE § 8-4-015 (2000), but it may well be unconstitutional. See Jocelyn L. Santo, Note, Down on the Corner: An Analysis of Gang-Related Antiloitering Laws, 22 CARDOZO L. REV. 269, 271 (2000) (noting that "[v]ery few antiloitering ordinances have . . . survived constitutional challenges"). For a defense of the new ordinance by one of its drafters, see Lawrence Rosenthal, Gang Loitering and Race, 91 J. CRIM. L. & CRIMINOLOGY 99 (2000).
65. 529. U.S. 266 (2000).
66. 531 U.S. 32 (2000).
67. 533 U.S. 27 (2001).
68. I do not wish to overstate the magnitude of the Court's shift toward more pro-defendant Fourth Amendment doctrine. These cases are by no means the equivalent of 1960s decisions like Miranda and Mapp. And there have been other, more pro-police decisions during the same time period: Illinois v. Wardlow, 528 U.S. 119 (2000), permitted a Terry stop based largely on flight from a police officer in a high-crime neighborhood, and Atwater v. City of Lago Vista, 532 U.S. 318 (2001), allowed custodial arrests for nonjailable offenses. (It might be worth noting that both Wardlow and Atwater were 5-4 decisions - unlike Morales, Edmond, and J.L.) Still, even with these qualifications, the Court's Fourth Amendment decisions since 1999 seem strikingly different from its decisions in the 1970s and 1980s; they are both more protective of suspects' interests and less deferential to claims of law enforcement need. Had the same set of decisions been handed down between 1989 and 1991 instead of between 1999 and 2001, I am confident that scholars and and Court watchers would have been astonished.
69. Or to changes in personnel. Since 1990, four new Justices have taken office: David Souter replaced William Brennan in 1990; Clarence Thomas took Thurgood Marshall's seat in 1991; Ruth Bader Ginsburg replaced Byron White in 1993; and Stephen Breyer filled Harry Blackmun's chair in 1994. It seems implausible to claim that those changes would produce a Court that was more protective of criminal suspects' interests than the Court of the 1980s - Souter and Thomas are more pro-law-enforcement than the Justices they replaced, and Breyer's voting pattern in criminal cases is not much different from Blackmun's during the latter part of his tenure. Only the change from White to Ginsburg seems to favor suspects' interests. Yet the Court is more protective of those interests than it was in the 1980s. Put crudely, we have a Court whose personnel shifted to the right and whose criminal procedure decisions shifted to the left. Something other than the Justices' own ideologies seems to be at work.
70. For a particularly insightful analysis of the ways in which the Supreme Court responds to the larger culture, see Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1 (1996). For the classic argument that the Court does indeed respond to larger social and political trends, see Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957).
71. For a particularly insightful analysis of the ways in which the Supreme Court responds to the larger culture, see Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1 (1996). For the classic argument that the Court does indeed respond to larger social and political trends, see Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957).
72. See, e.g., A Deliberate Strategy of Disruption; Massive, Secretive Detention Effort Aimed Mainly at Preventing More Terror, WASH. POST, Nov. 4, 2001, at A1 (noting courts' willingness to approve the widespread detention of terrorism suspects).
73. For a discussion of the Maryland case, see, for example, Don Terry Carjacking: New Name for Old Crime, N.Y. TIMES, Dec. 9, 1992, at A18. The federal statute passed in response to this incident appears at 18 U.S.C. § 2119 (1994). For examples of state statutes, see FLA STAT ANN. ch. 812.133 (Harrison Supp. 2001); LA. REV. STAT. ANN. § 14:64.2 (LEXIS through 2001 Supp.); and N.J. STAT. ANN. § 2C:15-2 (West 1995). Louisiana went beyond criminalizing carjacking, specifically authorizing victims of carjackings to kill perpetrators. See Susan Michelle Gerling, Note, Louisiana's New "Kill the Carjacker" Statute: Self-Defense or Instant Injustice?, 55 WASH. U. J. URB. & CONTEMP. L. 109 (1999).
74. For a discussion of the Maryland case, see, for example, Don Terry Carjacking: New Name for Old Crime, N.Y. TIMES, Dec. 9, 1992, at A18. The federal statute passed in response to this incident appears at 18 U.S.C. § 2119 (1994). For examples of state statutes, see FLA STAT ANN. ch. 812.133 (Harrison Supp. 2001); LA. REV. STAT. ANN. § 14:64.2 (LEXIS through 2001 Supp.); and N.J. STAT. ANN. § 2C:15-2 (West 1995). Louisiana went beyond criminalizing carjacking, specifically authorizing victims of carjackings to kill perpetrators. See Susan Michelle Gerling, Note, Louisiana's New "Kill the Carjacker" Statute: Self-Defense or Instant Injustice?, 55 WASH. U. J. URB. & CONTEMP. L. 109 (1999).
75. 122 S. Ct. 744 (2002).
76. Id. at 748-49. The timing of the van's trip also coincided with a shift change by border patrol agents. Id. at 748.
77. United States v. Arvizu, 232 F.3d 1241, 1248-49 (9th Cir. 2000), rev'd, 122 S. Ct. 744.
78. Justice O'Connor's statements are quoted in Linda Greenhouse, Court Rules on Police Searches of Motorists, N.Y. TIMES, Jan. 16, 2002, at A17.
79. 532 U.S. 318 (2001).
80. 517 U.S. 806 (1996).
81. See 532 U.S. at 372 (O'Connor, J., dissenting) ("[A]s the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual.").
82. See id. at 353 (majority opinion) (noting the "dearth of horribles demanding redress").
83. See supra text accompanying note 67.
84. The incident was briefly noted in the Boston Globe. Motorist Arrested near LNG Terminal, BOSTON GLOBE, Oct. 30, 2001, at B2. The details that follow are taken from that news report and from the police report. See Police Officer's Formal Report, Case No. 206672, Everett, Mass., Police Dep't (Oct. 23, 2001) (on file with authror).
85. That would be an ironic twist. Historically, the law governing federal policing was stricter than the law governing local police, because federal agents alone were bound by the Bill of Rights. Some academic comment seeks to recreate that state of affairs. See George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers' Bill of Rights and Criminal Procedure, 100 MICH. L. REV. 145 (2001). So far as I know, no one has argued that federal agents should be less regulated than local police.
86. This has been a theme of the New York Times's reporting on the aftermath of September 11. See, e.g., sources cited supra note 5.
87. See supra note 6 and accompanying text.
88. E.g., Bob Woodward & Dan Eggen, FBI and CIA Suspect Domestic Extremists; Officials Doubt Any Links to Bin Laden, WASH. POST, Oct. 27, 2001, at A1.
89. USA PATRIOT Act, supra note 2, §§ 206, 213, 216, 115 Stat. at 282, 285-86, 288-90.
90. There is a large debate about just how and how well that process works. Compare GEORGE L. KELLING & CATHERINE M. COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES (1996), with BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING (2001).
91. There is a large debate about just how and how well that process works. Compare GEORGE L. KELLING & CATHERINE M. COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES (1996), with BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING (2001).
92. See PHILIP B. HEYMANN, TERRORISM AND AMERICA 25-26, 130-31 (1998). As Heymann notes, these conditions hold for foreign and domestic antiterrorism work alike.
93. For an excellent discussion of the ways in which the fight against terrorism has, and has not, changed the debate about profiling, see Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. (forthcoming 2002) (manuscript on file with author).
94. See City of Indianapolis v. Edmond, 531 U.S. 32, 34-35 (2000) (noting that about five percent of stopped cars in drug checkpoints led to drug arrests and another four percent led to arrests for other offenses). By comparison, the success rate in the drunk driving roadblocks at issue in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), was less than one percent. See id. at 448.
95. The leading case on the legality (and mostly illegality) of group seizures is Edmond, 531 U.S. 32, which invalidated roadblocks used to catch drug offenders. On roadblocks as a tool for catching drunk drivers, see Sitz, 496 U.S. 444. On roadblocks as a border control device, see United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
96. See, e.g., Ybarra v. Illinois, 444 U.S. 85 (1979).
97. Edmond was a civil suit for injunctive relief. 531 U.S. at 36. After that decision, such seizures satisfy the "clear illegality" standard that qualified immunity doctrine applies to constitutional damages litigation. See Anderson v. Creighton, 483 U.S. 635 (1987).
98. 531 U.S. 32.
99. Aficionados of public choice theory will see the statement in the text as backward. According to that theory, it is precisely when costs are concentrated that interest groups form to combat imposition of those costs. Thus, the real danger is not concentrated costs coupled with diffused benefits, but concentrated benefits and diffused costs. That may often be true. But the need for something like the Takings Clause shows that it is not always true. If the cost-bearers are sufficiently few - e.g., the single landowner whose land is seized for a new airport - or powerless, or if there are barriers to their coalescing to fight the relevant government action, the government is likely to find it tempting to concentrate costs. For good discussions of these points, see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31 (1991): Daniel A. Farber, Public Choice and Just Compensation, 9 CONST. COMMENT. 279 (1992); and Daryl Levinson, Making Government Pay: Markets Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000). Those who bear the nonmonetary cost of policing tend to fall into the latter two categories. Criminal suspects are not a notably powerful voting bloc, nor are young males in poor urban neighborhoods. Also, the targets of police attention do not know who they are until they have been targeted - and even then, they do not know who else has been targeted. These are large obstacles to interest-group formation.
100. Aficionados of public choice theory will see the statement in the text as backward. According to that theory, it is precisely when costs are concentrated that interest groups form to combat imposition of those costs. Thus, the real danger is not concentrated costs coupled with diffused benefits, but concentrated benefits and diffused costs. That may often be true. But the need for something like the Takings Clause shows that it is not always true. If the cost-bearers are sufficiently few - e.g., the single landowner whose land is seized for a new airport - or powerless, or if there are barriers to their coalescing to fight the relevant government action, the government is likely to find it tempting to concentrate costs. For good discussions of these points, see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31 (1991): Daniel A. Farber, Public Choice and Just Compensation, 9 CONST. COMMENT. 279 (1992); and Daryl Levinson, Making Government Pay: Markets Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000). Those who bear the nonmonetary cost of policing tend to fall into the latter two categories. Criminal suspects are not a notably powerful voting bloc, nor are young males in poor urban neighborhoods. Also, the targets of police attention do not know who they are until they have been targeted - and even then, they do not know who else has been targeted. These are large obstacles to interest-group formation.
101. Aficionados of public choice theory will see the statement in the text as backward. According to that theory, it is precisely when costs are concentrated that interest groups form to combat imposition of those costs. Thus, the real danger is not concentrated costs coupled with diffused benefits, but concentrated benefits and diffused costs. That may often be true. But the need for something like the Takings Clause shows that it is not always true. If the cost-bearers are sufficiently few - e.g., the single landowner whose land is seized for a new airport - or powerless, or if there are barriers to their coalescing to fight the relevant government action, the government is likely to find it tempting to concentrate costs. For good discussions of these points, see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31 (1991): Daniel A. Farber, Public Choice and Just Compensation, 9 CONST. COMMENT. 279 (1992); and Daryl Levinson, Making Government Pay: Markets Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000). Those who bear the nonmonetary cost of policing tend to fall into the latter two categories. Criminal suspects are not a notably powerful voting bloc, nor are young males in poor urban neighborhoods. Also, the targets of police attention do not know who they are until they have been targeted - and even then, they do not know who else has been targeted. These are large obstacles to interest-group formation.
102. There is an enormous literature on the Takings Clause. Much of that literature is devoted to "regulatory takings," cases in which government regulation has reduced the value of private property without actually expropriating it. Good discussions of the basic idea of the Takings Clause are less common. For examples in addition to the sources cited in the preceding footnote, see Saul Levmore, Takings, Torts, and Special Interests, 77 VA. L. REV. 1333 (1991); and Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of Just Compensation" Law, 80 HARV. L. REV. 1165 (1967).
103. There is an enormous literature on the Takings Clause. Much of that literature is devoted to "regulatory takings," cases in which government regulation has reduced the value of private property without actually expropriating it. Good discussions of the basic idea of the Takings Clause are less common. For examples in addition to the sources cited in the preceding footnote, see Saul Levmore, Takings, Torts, and Special Interests, 77 VA. L. REV. 1333 (1991); and Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of Just Compensation" Law, 80 HARV. L. REV. 1165 (1967).
104. Even with a compensation requirement, police may not take sufficient account of suspects' interests, since government institutions may not respond to damages liability the way profit-maximizing private institutions do. See Levinson, supra note 87.
105. Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 COLUM. L. REV. 1456, 1464 (1996).
106. This follows naturally from the degree of residential segregation in the United States. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993).
107. See David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 MINN. L. REV. 265, 277-80 (1999) (citing Report of Dr. John Lamberth, Plaintiff's Expert, Revised Statistical Analysis of the Incidence of Police Stops and Arrests of Black Drivers/Travelers on the New Jersey Turnpike Between Exits or Interchanges 1 and 3 from the Years 1988 Through 1991, at 2, State v. Soto, 734 A.2d 350 (N.J. Super. Ct. Law Div. 1996) (No. 88-07-00492)).
108. If the troopers stopped only cars driving at least fifteen miles per hour over the speed limit, some racial disproportion would have remained - a recent study found black drivers substantially more likely to drive at very high speeds than white drivers. See David Kocieniewski, Study Suggests Racial Gap in Speeding in New Jersey, N.Y. TIMES, Mar. 21, 2002, at B1 (reporting on the study).
109. King was apprehended after a high-speed car chase in a car with two other passengers. Koon v. United States, 518 U.S. 81, 85-86 (1996).
110. I say "expensive" rather than "forbidden" because the police are likely to see the legal penalties that apply to Fourth Amendment violations as prices rather than sanctions. For the classic discussion of the difference, see Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523 (1984).
111. Intrusive searches and seizures like those mentioned in the text tend to require removal of the suspects from public spaces. Once suspects are taken to the police station or otherwise removed from the places where they were first stopped, the public can no longer function as a watchdog, and the regulatory advantages of group searches and seizures diminish substantially.
112. One might wonder whether courts could feasibly define "group" for these purposes The three suspects stopped in Terry v. Ohio, 392 U.S. 1, 5-7 (1968), plainly should not qualify while the dozens of people stopped at a typical roadblock plainly should. The question is where to draw the line between Terry and the roadblock, and the answer is not obvious. The problem sounds difficult in the abstract, but it would likely be a small problem in practice. After all, for ten years - the time between the Court's decisions in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), and Edmond - group seizures appeared generally legal. Sitz found that, despite a one percent success rate, see 496 U.S. at 469, the benefits of the roadblock program at issue outweighed its costs. The same argument could easily be made in favor of drug checkpoints or street sweeps in high-crime neighborhoods. Thus, group definition should have been an issue throughout the 1990s. Yet it appears to have generated no litigation The likely reason is that the line draws itself. If the police stop everyone at a given place and time (that much should certainly be part of the definition of groups), they will rarely stop only three or four people. That is, most cases would fall pretty clearly on one side of the line or the other. Thus, it would probably suffice for courts to say "we know groups when we see them," and leave it at that.
113. 517 U.S. 806 (1996). Because almost everyone violates one traffic regulation or another, the requirement of reasonable suspicion or probable cause offers no restriction on police officers' ability to stop drivers. A ban on pretext stops would at least limit stops designed to investigate something other than a traffic violation - surely a sizeable proportion of vehicle stops, though no one knows precisely how large the proportion is. But Whren explicitly rejects such a ban. Id. at 812-13.
114. E.g., United States v. Hensley, 469 U.S. 221 (1985).
115. Terry, 392 U.S. at 27.
116. 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 9.5(c), at 279 (3d ed. 1996) ("[C]ourts have upheld as proper searches [that] turned up . . . objects . . . such as a pocket tape recorder, a pipe, a pair of pliers, cigarette lighter, several keys taped together, a metal money clip full of money, tightly wrapped bags of crack cocaine, or a prescription bottle." (footnotes omitted)).
117. The nominal definition of "seizure" is this: One is seized when a reasonable person in one's shoes would not feel free to terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 438 (1991); United States v. Mendenhall, 446 U.S. 544 (1980). If courts took that definition seriously, almost all police-citizen encounters would be seizures, since hardly anyone feels free to walk away from a police officer without the officer's permission. The actual (though unarticulated) definition is more like this: One is seized when a police officer behaves with a higher level of coercion than is ordinary and reasonable in a brief street encounter. For a survey of the cases, see 4 LAFAVE, supra note 101, § 9.3 (3d ed. 1996 & Supp. 2002).
118. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
119. Cf. Illinois v. Wardlow, 528 U.S. 119 (2000). The central issue in Wardlow was whether the suspect's flight gave rise to reasonable suspicion. But the Court, in finding for the state, emphasized Wardlow's presence in "an area known for heavy narcotics trafficking"; indeed, the Chief Justice noted that fact and used some form of that phrase three times in his brief opinion for the Court. Id. at 121, 124. The Court thus seemed to say that even without Wardlow's flight, the police were close to having reasonable suspicion.
120. See Ohio v. Robinette, 519 U.S. 33 (1996).
121. OFFICE OF THE ATTORNEY GEN. OF THE STATE OF N.Y., THE NEW YORK CITY POLICE DEPARTMENT'S "STOP & FRISK" PRACTICES: A REPORT TO THE PEOPLE OF THE STATE OF NEW YORK 76-77 (1999) [hereinafter STOP & FRISK REPORT] (third ellipsis in original).
122. Id. at 78-79 (second and third ellipses in original).
123. Id. at 77-78.
124. Id. at 79.
125. This basic finding forms the core of a number of works. See e.g., YUEN J. HUO & TOM R. TYLER, HOW DIFFERENT ETHNIC GROUPS REACT TO LEGAL AUTHORITY (2000); TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990); Tom R. Tyler, Trust and Law Abidingness: A Proactive Model of Social Regulation, 81 B.U. L. REV. 361 (2001) [hereinafter Tyler, Trust and Law Abidingness].
126. This basic finding forms the core of a number of works. See e.g., YUEN J. HUO & TOM R. TYLER, HOW DIFFERENT ETHNIC GROUPS REACT TO LEGAL AUTHORITY (2000); TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990); Tom R. Tyler, Trust and Law Abidingness: A Proactive Model of Social Regulation, 81 B.U. L. REV. 361 (2001) [hereinafter Tyler, Trust and Law Abidingness].
127. This basic finding forms the core of a number of works. See e.g., YUEN J. HUO & TOM R. TYLER, HOW DIFFERENT ETHNIC GROUPS REACT TO LEGAL AUTHORITY (2000); TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990); Tom R. Tyler, Trust and Law Abidingness: A Proactive Model of Social Regulation, 81 B.U. L. REV. 361 (2001) [hereinafter Tyler, Trust and Law Abidingness].
128. See HUO & TYLER, supra note 110, at 21-26.
129. See id. at 27-38.
130. See Tyler, Trust and Law Abidingness, supra note 110, at 368-72, 383-85.
131. See STOP & FRISK REPORT, supra note 106, at 110 tbl.I.A.5 (showing that sixty-nine percent of stops in New York City are for violent crimes, weapons offenses, or property crime). The report does not offer a more detailed breakdown, but one can reasonably assume that the dominant violent crimes are assault and robbery, the main weapons offense is some form of illegal possession of a gun, and the property crimes are mostly some species of theft.
132. See supra note 102. The working definition of "seizure" depends on an open-ended assessment of the coerciveness of the officer's behavior toward the suspect. Coercion is judged in context, based on the surrounding circumstances. (Thus, in Florida v. Bostick, 501 U.S. 429 (1991), the bulk of the Court's opinion concerned the ways in which the setting - a Greyhound bus - did or did not alter the nature of the relevant police conduct.) A ban on rude police behavior, though it sounds impossibly vague, thus amounts to the same sort of legal regulation as the definition of "seizure." As there are no complaints that the "seizure" cases are impossible for officers to understand or for courts to apply, perhaps vagueness in this context is not such a bold things after all.
133. That raises another problem. In order for police to know where the boundaries are, judges must be able to find the relevant facts, and factfinding in suppression hearings is hard. This is so for two reasons: Suspects have an incentive not to take the stand - if they do so, anything they say can be used to impeach them at a later trial - and police officers have an incentive to shade the truth. The result is a swearing contest where only one side swears, and may well swear falsely. These effects may be especially severe when it comes to the regulation of the manner of street stops, since any such regulation requires fairly rich factual accounts. That problem may be devastating, but I doubt it. First, the evidence suggests that while police sometimes lie in suppression hearings, they do not lie very effectively - judges can generally tell the difference between a self-serving story and the truth. This can be deduced from the combination of two facts: Police lie frequently, yet defendants win a significant fraction of suppression motions. On the first fact, see, for example, Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75 (1992). Orfield's study suggests that police perjury succeeds mainly in cases where the crime charged is sufficiently serious that, in the judge's eyes, suppression seems inappropriate. Id. at 83. That phenomenon turns more on judicial nullification than on police perjury. On the second fact, see Peter F. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 AM. B. FOUND. RES. J. 585. Nardulli's study is generally taken to prove that successful exclusionary rule claims are exceedingly rare, but they are actually about as common as acquittals at trial: Both occur in about one percent of criminal cases. Compare id. at 598 tbl.8, with SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1999, at 460 tbl.5.62 (Ann L. Pastore & Kathleen Maguire ed., 2000) [hereinafter 1999 SOURCEBOOK]. A better measure of defendants' success rate in suppression motions is the percentage of such motions that are granted; there, Nardulli finds a success rate of 16.9% for suppression of physical evidence. Nardulli, supra, at 596. This figure is likewise comparable to defendants' success rate at criminal trials. See 1999 SOURCEBOOK, supra, at 460 tbl.5.62 (showing a five-to-one ratio of trial convictions to acquittals).
134. That raises another problem. In order for police to know where the boundaries are, judges must be able to find the relevant facts, and factfinding in suppression hearings is hard. This is so for two reasons: Suspects have an incentive not to take the stand - if they do so, anything they say can be used to impeach them at a later trial - and police officers have an incentive to shade the truth. The result is a swearing contest where only one side swears, and may well swear falsely. These effects may be especially severe when it comes to the regulation of the manner of street stops, since any such regulation requires fairly rich factual accounts. That problem may be devastating, but I doubt it. First, the evidence suggests that while police sometimes lie in suppression hearings, they do not lie very effectively - judges can generally tell the difference between a self-serving story and the truth. This can be deduced from the combination of two facts: Police lie frequently, yet defendants win a significant fraction of suppression motions. On the first fact, see, for example, Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75 (1992). Orfield's study suggests that police perjury succeeds mainly in cases where the crime charged is sufficiently serious that, in the judge's eyes, suppression seems inappropriate. Id. at 83. That phenomenon turns more on judicial nullification than on police perjury. On the second fact, see Peter F. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 AM. B. FOUND. RES. J. 585. Nardulli's study is generally taken to prove that successful exclusionary rule claims are exceedingly rare, but they are actually about as common as acquittals at trial: Both occur in about one percent of criminal cases. Compare id. at 598 tbl.8, with SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1999, at 460 tbl.5.62 (Ann L. Pastore & Kathleen Maguire ed., 2000) [hereinafter 1999 SOURCEBOOK]. A better measure of defendants' success rate in suppression motions is the percentage of such motions that are granted; there, Nardulli finds a success rate of 16.9% for suppression of physical evidence. Nardulli, supra, at 596. This figure is likewise comparable to defendants' success rate at criminal trials. See 1999 SOURCEBOOK, supra, at 460 tbl.5.62 (showing a five-to-one ratio of trial convictions to acquittals).
135. That raises another problem. In order for police to know where the boundaries are, judges must be able to find the relevant facts, and factfinding in suppression hearings is hard. This is so for two reasons: Suspects have an incentive not to take the stand - if they do so, anything they say can be used to impeach them at a later trial - and police officers have an incentive to shade the truth. The result is a swearing contest where only one side swears, and may well swear falsely. These effects may be especially severe when it comes to the regulation of the manner of street stops, since any such regulation requires fairly rich factual accounts. That problem may be devastating, but I doubt it. First, the evidence suggests that while police sometimes lie in suppression hearings, they do not lie very effectively - judges can generally tell the difference between a self-serving story and the truth. This can be deduced from the combination of two facts: Police lie frequently, yet defendants win a significant fraction of suppression motions. On the first fact, see, for example, Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75 (1992). Orfield's study suggests that police perjury succeeds mainly in cases where the crime charged is sufficiently serious that, in the judge's eyes, suppression seems inappropriate. Id. at 83. That phenomenon turns more on judicial nullification than on police perjury. On the second fact, see Peter F. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 AM. B. FOUND. RES. J. 585. Nardulli's study is generally taken to prove that successful exclusionary rule claims are exceedingly rare, but they are actually about as common as acquittals at trial: Both occur in about one percent of criminal cases. Compare id. at 598 tbl.8, with SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1999, at 460 tbl.5.62 (Ann L. Pastore & Kathleen Maguire ed., 2000) [hereinafter 1999 SOURCEBOOK]. A better measure of defendants' success rate in suppression motions is the percentage of such motions that are granted; there, Nardulli finds a success rate of 16.9% for suppression of physical evidence. Nardulli, supra, at 596. This figure is likewise comparable to defendants' success rate at criminal trials. See 1999 SOURCEBOOK, supra, at 460 tbl.5.62 (showing a five-to-one ratio of trial convictions to acquittals).
136. The reference is to Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
137. The reference is to the famous line about the man looking for his car keys on a city sidewalk under a streetlight at night. Another man approaches and asks what the first is doing; he responds, "Looking for my car keys." The second man asks, "Did you lose them here?" When the first says no, the second asks why he is looking there if he didn't lose his keys there. The answer: "Because it's easier to look under the light."
138. RANDALL KENNEDY, RACE, CRIME, AND THE LAW 138-63 (1997). Although Kennedy does not call the phenomenon "profiling," the kind of police discriminate he discusses in these pages is precisely the kind that travels under that label today.
139. Id. at 158-60.
140. For a detailed discussion of the studies, see Harris, supra note 92.
141. Or reasonable suspicion of any other offense. See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 (1979). The probable cause requirement is easily satisfied with respect to traffic violations, since those violations are almost always readily observable - once the police see a car speeding or driving with a broken headlight, they have probable cause to believe the driver has violated the traffic code.
142. See, e.g., United States v. Arvizu, 122 S. Ct. 744, 752 (2002).
143. See id. at 749 (describing a minivan as "a type of automobile that . . . smugglers used"). The minivan in Arvizu contained two adults and three children. Id.
144. For a classic example, see Ornelas v. United States, 517 U.S. 690 (1996). In that case, the officer justified searching behind a loose panel of the suspect's car based on the fact that the panel was loose and contained a rusty screw, which suggested to the officer that the panel might have been removed and drugs placed behind it. There are two relevant empirical questions in such a case: How many similarly loose panels hide illegal drugs, and how many don't? Naturally, the Court had no idea what the answers to those questions were - nor did the district judge or the court of appeals panel before it. So the Court emphasized the officer's testimony that loose panels often hide drugs and left it at that. The result was a defense victory, but only nominally: As David Sklansky notes, Ornelas reinforced the tendency to credit police officer testimony in such cases. See Sklansky, supra note 8, at 300-01.
145. This is even more true when we move from vehicular to pedestrian traffic. The more visual characteristics officers can observe, the longer the list of factors they can plausibly claim are associated with crime.
146. See Gross & Livingston, supra note 81 (manuscript at 8).
147. See Janet T. Landa, A Theory of the Ethnically Homogeneous Middleman Group: An Institutional Alternative to Contract Law, 10 J. LEGAL STUD. 349 (1981).
148. Even when the benefits of profiling exceed its costs, it may sometimes be a social bad. Profiling imposes a regressive racial tax; it tends to be paid disproportionately by those at the bottom of the social and economic ladders. The more one cares about distributive justice, the more one might wish to see profiling's benefits strongly outweigh its (nondistributive) harms before concluding that it is socially beneficial.
149. This is an oversimplification. It would be more accurate to say that police internalize profiling's costs only through the political system, and therefore only partially. That is the upshot of the takings analogy discussed supra notes 87-89 and accompanying text.
150. See Jeffrey Rosen, A Watchful State, N.Y. TIMES, Oct. 7, 2001, § 6 (Magazine), at 38.
151. USA PATRIOT Act, supra note 2, § 206, 115 Stat. at 282.
152. Id. § 213, 115 Stat. at 285.
153. Id. § 216, 115 Stat. at 288. Officers must get "trap and trace" orders in order to obtain this information, but those orders are a formality. The only precondition is that the information sought be relevant to a criminal investigation. Id.
154. That is the ACLU's analysis. See Am. Civil Liberties Union, How the USA-PATRIOT Act Limits Judicial Oversight of Telephone and Internet Surveillance, at http://www.aclu.org/ congress/L102301g.html (last visited Jan. 17, 2002).
155. For the numbers, see supra note 3.
156. See, e.g., GARY T. MARX, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA 37-40 (1988) (discussing the use of undercover agents to attack white-collar crime networks); James B. Jacobs & Lauryn P. Gouldin, Cosa Nostra: The Final Chapter?, 25 CRIME & JUST. 129 (1999) (emphasizing the role wiretaps played in bringing down major Mafia families).
157. See, e.g., GARY T. MARX, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA 37-40 (1988) (discussing the use of undercover agents to attack white-collar crime networks); James B. Jacobs & Lauryn P. Gouldin, Cosa Nostra: The Final Chapter?, 25 CRIME & JUST. 129 (1999) (emphasizing the role wiretaps played in bringing down major Mafia families).
158. See USA PATRIOT Act, supra note 2, § 206, 115 Stat. at 282 (authorizing warrants for non-place-specific wiretaps to be issued by the Foreign Intelligence Surveillance Court); id. § 213, 115 Stat. at 285 (authorizing the issuance of sneak-and-peek warrants); id. § 216, 115 Stat. at 288 (authorizing trap and trace orders for Internet surveillance).
159. Berger v. New York, 388 U.S. 41 (1967) (requiring this as a matter of Fourth Amendment law). Congress effectively displaced Berger with a detailed statutory scheme in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Pub. L. No. 90-351, tit. III, 82 Stat. 197, 211-25 (codified at 18 U.S.C. §§ 2510-2522 (1994)).
160. The best evidence for this proposition is negative. There is an enormous literature on the law of search and seizure, and the great majority of it is highly critical. Wiretaps receive amazingly little attention in that large literature. The likely reason is the sense that the regulatory regime prevents the worst police abuses.
161. I have made this argument at greater length elsewhere. Stuntz, supra note 30, at 885-88.
162. The general assumption is that the search warrant process is a rubber-stamp process. The leading study of that process tends to validate that assumption: Based on our observations and interviews, the rate of outright rejection [of warrant applications] is extremely low. Most of our police interviewees could not remember having a search warrant application turned down. . . . Of the 84 warrant proceedings observed, 7 resulted in denial of the application (8 percent). VAN DUIZEND ET AL., supra note 29, at 32. The eight percent figure probably overstates the rate at which applications are denied, since magistrates are more likely to review applications with care when they are being observed by third parties than when only the magistrate, the police officer and perhaps a court reporter are present. Perhaps surprisingly given this pessimistic conclusion, the success rate of searches pursuant to warrants is very high. See id. at 51 tbl.2-20 (showing that police in the seven jurisdictions studied found most of the items listed in the warrant in between sixty-four and eighty-two percent of searches). The delay and paperwork involved for police officers leads the officers to use the warrant process carefully, not for fear that magistrates will reject applications, but in order to avoid wasting time filling out forms and waiting around courthouses.
163. See 1999 SOURCEBOOK, supra note 116, at 384 tbl.5.3 (showing a total of 1329 wiretap orders for 1998, with 566 issued by federal courts and 763 by state courts).
164. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1998, at 328 tbl.4.1 (Kathleen Maguire & Ann L. Pastore eds., 1998) (showing 15.3 million arrests for 1997).
165. The need for some such limit is a good deal clearer after the spate of exceedingly public investigations by independent counsels in the 1990s. For a good discussion of the kinds of privacy invasions those investigations - and especially the disclosure that followed them - entailed, see JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA (2000). For a pair of early arguments in the literature for privacy protection that focused on disclosure, see Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1 (1991); and Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 TEX. L. REV. 49 (1995). The historical norm has been to permit the police to do anything with information that they obtain legally, but of late, the Supreme Court seems to have taken an interest in limiting extraneous publicity. See Wilson v. Layne, 526 U.S. 603 (1999) (finding a house search unconstitutional where police officers were accompanied by newspaper reporters and photographers). But there is still no constitutional limit on disclosure of information once obtained - notice that Wilson dealt with publicity that was coincident with the search.
166. The need for some such limit is a good deal clearer after the spate of exceedingly public investigations by independent counsels in the 1990s. For a good discussion of the kinds of privacy invasions those investigations - and especially the disclosure that followed them - entailed, see JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA (2000). For a pair of early arguments in the literature for privacy protection that focused on disclosure, see Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1 (1991); and Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 TEX. L. REV. 49 (1995). The historical norm has been to permit the police to do anything with information that they obtain legally, but of late, the Supreme Court seems to have taken an interest in limiting extraneous publicity. See Wilson v. Layne, 526 U.S. 603 (1999) (finding a house search unconstitutional where police officers were accompanied by newspaper reporters and photographers). But there is still no constitutional limit on disclosure of information once obtained - notice that Wilson dealt with publicity that was coincident with the search.
167. The need for some such limit is a good deal clearer after the spate of exceedingly public investigations by independent counsels in the 1990s. For a good discussion of the kinds of privacy invasions those investigations - and especially the disclosure that followed them - entailed, see JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA (2000). For a pair of early arguments in the literature for privacy protection that focused on disclosure, see Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1 (1991); and Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 TEX. L. REV. 49 (1995). The historical norm has been to permit the police to do anything with information that they obtain legally, but of late, the Supreme Court seems to have taken an interest in limiting extraneous publicity. See Wilson v. Layne, 526 U.S. 603 (1999) (finding a house search unconstitutional where police officers were accompanied by newspaper reporters and photographers). But there is still no constitutional limit on disclosure of information once obtained - notice that Wilson dealt with publicity that was coincident with the search.
168. There was a brief time, in the late 1950s and early 1960s, when the Supreme Court seemed about to create a body of substantive due process doctrine aimed specially at criminal law. See Lambert v. California, 355 U.S. 225 (1957) (invalidating a felon registration statute on lack-of-notice grounds); Robinson v. California, 370 U.S. 660 (1962) (overturning a conviction for drug addiction on the ground that addiction was involuntary); Griswold v. Connecticut, 381 U.S. 479 (1965) (overturning a criminal ban on contraceptives on the ground that the ban infringed marital privacy). But the moment passed, and the Court turned instead to the constitutionalization of criminal procedure, leaving substantive criminal law largely unregulated. For an account of this process and some speculation about why the Court chose as it did, see William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 66-74 (1997).
169. Most of the argument in this Section is developed at greater length in William J. Stuntz, Miranda's Mistake, 99 MICH. L. REV. 975 (2001).
170. Miranda v. Arizona, 384 U.S. 436 (1966).
171. This is not the way the cases put it, but it accurately describes the reality. North Carolina v. Butler, 441 U.S. 369 (1979), holds that waiver can be implied from the suspect's conduct. The conduct that generally "implies" waiver is simply talking to the police after the warnings have been read.
172. See Edwards v. Arizona, 451 U.S. 477 (1981) (holding that if the suspect invokes the right to counsel, questioning is barred until the suspect reinitiates contact); Michigan v. Mosley, 423 U.S. 96 (1975) (holding that if the suspect invokes the right to remain silent only, questioning is barred for a period of time). In practice, suspects almost never invoke only the right to remain silent; they invoke either both rights or the right to counsel. The strongest evidence for this proposition is the near-total absence of litigation about the boundaries of Mosley's invocation rule.
173. Edwards, 451 U.S. at 482.
174. See cases cited supra notes 148-151.
175. A 1988 American Bar Association survey found general agreement among police officers with the proposition that neither the Fourth Amendment's exclusionary rule nor Miranda posed any serious problem for the police. AM. BAR ASS'N SPECIAL COMM. ON CRIMINAL JUSTICE IN A FREE SOC'Y, CRIMINAL JUSTICE IN CRISIS 12-20, 28-30 (1988).
176. The key actor was Paul Cassell, who wrote the amicus brief that persuaded the Fourth Circuit to uphold the 1968 statute that purported to overturn Miranda in federal courts. See United States v. Dickerson, 166 F.3d 667, 681-82 (4th Cir. 1999), rev'd, 530 U.S. 428 (2000). Casell's brief arose out of a body of scholarship attacking Miranda and defending Congress's power to overrule it. See, e.g., Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996); Paul G. Cassell, The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175 (1999); Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998).
177. The key actor was Paul Cassell, who wrote the amicus brief that persuaded the Fourth Circuit to uphold the 1968 statute that purported to overturn Miranda in federal courts. See United States v. Dickerson, 166 F.3d 667, 681-82 (4th Cir. 1999), rev'd, 530 U.S. 428 (2000). Casell's brief arose out of a body of scholarship attacking Miranda and defending Congress's power to overrule it. See, e.g., Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996); Paul G. Cassell, The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175 (1999); Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998).
178. The key actor was Paul Cassell, who wrote the amicus brief that persuaded the Fourth Circuit to uphold the 1968 statute that purported to overturn Miranda in federal courts. See United States v. Dickerson, 166 F.3d 667, 681-82 (4th Cir. 1999), rev'd, 530 U.S. 428 (2000). Casell's brief arose out of a body of scholarship attacking Miranda and defending Congress's power to overrule it. See, e.g., Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996); Paul G. Cassell, The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175 (1999); Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998).
179. See supra note 150 and accompanying text.
180. In Richard Leo's study, 38 out of 182 suspects invoked, but 36 of those invocations came at the beginning of questioning, not during questioning. Leo, supra note 27, at 653. The next best study shows a slightly higher but still very small percentage of invocations during questioning. See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 859-60 (1996) (counting five such invocations out of 129 interrogations).
181. Again, the best data are from Leo's work, which shows a prequestioning invocation rate of twenty percent (counting thirty-six such invocations out of 182 suspects). Leo, supra note 27, at 653.
182. Leo's study found that a suspect with a felony record was four times as likely to invoke as a suspect with no record, and three times as likely as a suspect with only a misdemeanor record. Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 286-87 (1996). It is important to see that the gains and losses are reciprocal. Suppose that a prosecutor faces a pool of ten cases, but has enough time to prosecute only five. Now suppose that, because of Miranda, two of the ten cases are suddenly harder to prosecute - there are no incriminating statements to introduce, so these two cases, while winnable, are riskier for the government than the other eight. The odds that the two Miranda winners will be prosecuted go down, while the odds that each of the other eight cases will be prosecuted go up. As long as prosecutors operate at capacity, meaning that they have more plausible cases to prosecute than they have time for, Miranda's winners will generate their own losers.
183. See, e.g., HEYMANN, supra note 80, at 111 ("In cases of political violence by members of a disaffected group, both loyalty to the cause and fear of retaliation are likely to discourage witnesses from coming forward."). For a discussion of how security forces in Northern Ireland dealt with this problem, see id. at 123-25. News reports shortly after the September 11 attacks indicate that the FBI has struggled with this problem in its efforts both to identify suspects in those attacks and to gather intelligence about planned future attacks. See, e.g., Walter Pincus, Silence of 4 Terror Probe Suspects Poses Dilemma for FBI, WASH. POST, Oct. 21, 2001, at A6 (quoting an FBI official as saying, "We're into this thing for 35 days and nobody is talking" and "frustration has begun to appear").
184. The idea that Miranda has perversely produced greater judicial deference to the police is now commonplace in the literature. For two early discussions, see Patrick A. Malone, "You Have the Right To Remain Silent": Miranda After Twenty Years, 55 AM. SCHOLAR 367, 377-79 (1986); and Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 742-47 (1992).
185. The idea that Miranda has perversely produced greater judicial deference to the police is now commonplace in the literature. For two early discussions, see Patrick A. Malone, "You Have the Right To Remain Silent": Miranda After Twenty Years, 55 AM. SCHOLAR 367, 377-79 (1986); and Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 742-47 (1992).
186. Charles Weisselberg argues that police in California do this already in a wide range of cases. See Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 137 (1998).
187. For good, brief discussions, see, for example, HEYMANN, supra note 80, at 123-25, discussing Northern Ireland; and Catherine M. Grosso, Note, International Law in the Domestic Arena: The Case of Torture in Israel, 86 IOWA L. REV. 305, 311-18 (2000), discussing Israel.
188. This conclusion seems at odds with the proposition advanced in Part I: that the legal boundaries in this area ought to depend on context, including the frequency and severity of the relevant crime problems. It would seem to follow from that proposition that if, for example, the terrorist threat is great enough and torture effective enough, we ought to authorize torture as a tool for interrogating suspected terrorists. There are two responses. First, one can consistently believe that (1) some kinds of police tactics are always and everywhere wrong and (2) the rightness or wrongness of other tactics depends on circumstances. If any interrogation tactic is to be forbidden across the board, it is the infliction of severe physical pain for the purpose of obtaining information from the suspect. Second, even if torture were deemed permissible in principle in extreme cases, the extreme cases are rare enough, and the difficulty of limiting the practice to those cases great enough, that it makes sense to ban the practice without exception. It may be worth noting that even FBI agents, expressing frustration with their inability to get information from suspects in the wake of the September 11 attacks, suggested that torture should not be an option; they were more interested in using drugs as a tool for loosening suspects' tongues. See Pincus, supra note 159. 164. On the idea that the federal government cannot "commander" state and local officials, see Printz v. United States, 521 U.S. 898 (1997). On the limits the Commerce Clause places on federal power, see United States v. Morrison, 529 U.S. 598 (2000); and United States v. Lopez, 514 U.S. 549 (1995). On the limits Section 5 of the Fourteenth Amendment of places on federal power, particularly when dealing with state employees, see Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).
189. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S. 100 (1941); United States v. Carolene Prods. Co., 304 U.S. 144 (1938); W. Coast Hotel v. Parrish, 300 U.S. 379 (1937).
190. See Chapman v. California, 386 U.S. 18 (1967) (defining the standard for harmless constitutional error).
191. See Gideon v. Wainwright, 372 U.S. 335 (1963) (granting the right to appointed counsel for criminal trials); Douglas v. California, 372 U.S. 353 (1963) (extending that right to criminal appeals).
192. See Washington v. Texas, 388 U.S. 14 (1967) (applying the compulsory process requirement to state cases).
193. See Benton v. Maryland, 395 U.S. 784 (1969) (applying the ban on double jeopardy to state cases).
194. See Fay v. Noia, 372 U.S. 391 (1963) (establishing a lenient procedural default standard tor federal habeas review of state court convictions).
195. See Miranda v. Arizona, 384 U.S. 436 (1966) (establishing, in effect, a code of police interrogation, with detailed warnings and strict waiver standards).
196. See Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to state cases); Monroe v. Pape, 365 U.S. 167 (1961) (broadening damages liability for constitutional violations).
197. See Bruton v. United States, 391 U.S. 123 (1968) (barring the admission of an accomplice's out-of-court confession at the defendant's trial).
198. See Duncan v. Louisiana, 391 U.S. 145 (1968) (applying the right to jury trial in serious criminal cases to the states).
199. Beck v. Ohio, 379 U.S. 89 (1964), barred the police from using evidence obtained after arrest to justify the arrest. Shuttlesworth v. Birmingham, 382 U.S. 87 (1965), made it harder to justify arrests by reference to broad, catchall crimes like loitering or vagrancy.
200. See Katz v. United States, 389 U.S. 347 (1967) (holding that taps of public telephones are "searches" subject to the Fourth Amendment's warrant requirement); Berger v. New York, 388 U.S. 41 (1967) (placing various restrictions including, but not limited to, probable cause and warrant requirements on taps of private telephones).
201. Almost all the relevant decisions came between 1961 and 1968. See supra notes 166-176.
202. Indeed, at around the same time, legislatures were undertaking a comprehensive reform of the law that defines crimes, with the Model Penal Code triggering large-scale revision of a couple dozen state criminal codes. See MODEL PENAL CODE, at xi (Official Draft and Revised Comments 1985) (listing thirty-four states that had revised their criminal codes between 1962 and 1983). A comparison of the two reform movements is interesting. I think it is fair to say that the Supreme Court's reform of criminal procedure was a good deal more extensive - involving a good deal more and more consequential change in legal doctrine - than the ALI-prompted reform of criminal law.
203. At least that was the clear intent. The effect of the Warren Court's criminal procedure decisions was rather different. For extended discussions, see sources cited infra note 185.
204. On political speech, see Brandenburg v. Ohio, 395 U.S. 444 (1969). On artistic speech, though it is slightly outside the relevant time frame, see Roth v. United States, 354 U.S. 476 (1957).
205. With respect to substantive due process, see Griswold v. Connecticut, 381 U.S. 479 (1965). With respect to the procedural variety (though it is slightly beyond the 1960s), see Goldberg v. Kelly, 397 U.S. 254 (1970).
206. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1994).
207. See Katzenbach v. Morgan, 384 U.S. 641 (1966).
208. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
209. This proposition holds for criminal procedure as a whole, not just for the range of Fourth and Fifth Amendment issues discussed in this Essay. Scholars in the field, regardless of their differing views on the proper direction of legal reform, increasingly agree that the law in this field is dysfunctional. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE (1997) (advocating a return to the original understanding of the Fourth, Fifth, and Sixth Amendments); DONALD A. DRIPPS, CRIMINAL PROCEDURE AS CONSTITUTIONAL LAW (forthcoming 2002) (advocating the abandonment of incorporation and a return to due process analysis); WILLIAM T. PIZZI, TRIALS WITHOUT TRUTH (1999) (advocating greater emphasis on accuracy and the truth-finding function of criminal trials); Stuntz, supra note 146 (advocating less constitutional regulation of procedure and more regulation of substantive criminal law and the funding of criminal defense counsel).
210. This proposition holds for criminal procedure as a whole, not just for the range of Fourth and Fifth Amendment issues discussed in this Essay. Scholars in the field, regardless of their differing views on the proper direction of legal reform, increasingly agree that the law in this field is dysfunctional. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE (1997) (advocating a return to the original understanding of the Fourth, Fifth, and Sixth Amendments); DONALD A. DRIPPS, CRIMINAL PROCEDURE AS CONSTITUTIONAL LAW (forthcoming 2002) (advocating the abandonment of incorporation and a return to due process analysis); WILLIAM T. PIZZI, TRIALS WITHOUT TRUTH (1999) (advocating greater emphasis on accuracy and the truth-finding function of criminal trials); Stuntz, supra note 146 (advocating less constitutional regulation of procedure and more regulation of substantive criminal law and the funding of criminal defense counsel).
211. This proposition holds for criminal procedure as a whole, not just for the range of Fourth and Fifth Amendment issues discussed in this Essay. Scholars in the field, regardless of their differing views on the proper direction of legal reform, increasingly agree that the law in this field is dysfunctional. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE (1997) (advocating a return to the original understanding of the Fourth, Fifth, and Sixth Amendments); DONALD A. DRIPPS, CRIMINAL PROCEDURE AS CONSTITUTIONAL LAW (forthcoming 2002) (advocating the abandonment of incorporation and a return to due process analysis); WILLIAM T. PIZZI, TRIALS WITHOUT TRUTH (1999) (advocating greater emphasis on accuracy and the truth-finding function of criminal trials); Stuntz, supra note 146 (advocating less constitutional regulation of procedure and more regulation of substantive criminal law and the funding of criminal defense counsel).
212. For the best recent example, see Dickerson v. United States, 530 U.S. 428 (2000).