Traffic stops, minority motorists, and the future of the fourth amendment

Supreme Court Review

Volumn 1997, Issue 1, 1997, Pages 271-329

  Sklansky, David A ^a  

^a NONE

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EID: 0347933824     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1997.3109744     Document Type: Article

References (484)

1. See, for example, Stephen Braun, Trooper's Vigilance Led to Arrest of Blast Suspect, LA Times A1 (Apr 22, 1995) (describing arrest of Oklahoma City bomber Timothy McVeigh following traffic stop); Richard Simon, Traffic Stops - Tickets to Surprises, LA Times B1 (May 15, 1995) (noting that serial killers Ted Bundy and Randy Kraft were caught during traffic stops).
2. See, for example, Stephen Braun, Trooper's Vigilance Led to Arrest of Blast Suspect, LA Times A1 (Apr 22, 1995) (describing arrest of Oklahoma City bomber Timothy McVeigh following traffic stop); Richard Simon, Traffic Stops - Tickets to Surprises, LA Times B1 (May 15, 1995) (noting that serial killers Ted Bundy and Randy Kraft were caught during traffic stops).
3. David H. Bayley, Police for the Future 29 (Oxford, 1994). Not surprisingly, traffic officers take a different view. See id; Simon, Traffic Stops, LA Times at B1 (quoting California Highway Patrol Sgt. Mike Teixiera's assertion that "[w]e probably get more murderers stopping them for speeding than we do by looking for them").
4. David H. Bayley, Police for the Future 29 (Oxford, 1994). Not surprisingly, traffic officers take a different view. See id; Simon, Traffic Stops, LA Times at B1 (quoting California Highway Patrol Sgt. Mike Teixiera's assertion that "[w]e probably get more murderers stopping them for speeding than we do by looking for them").
5. See, for example, Chambers v Maroney, 399 US 42, 51 (1970) (explaining that "a search warrant [is] unnecessary where there is probable cause to search an automobile stopped on the highway," because "the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained"); Michigan Dep't of State Police v Sitz, 496 US 444, 451 (1990) (upholding sobriety checkpoint in part because of "the magnitude of the drunken driving problem").
6. See, for example, Chambers v Maroney, 399 US 42, 51 (1970) (explaining that "a search warrant [is] unnecessary where there is probable cause to search an automobile stopped on the highway," because "the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained"); Michigan Dep't of State Police v Sitz, 496 US 444, 451 (1990) (upholding sobriety checkpoint in part because of "the magnitude of the drunken driving problem").
7. See South Dakota v Opperman, 428 US 364, 367-68 (1976) (reasoning that "the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office," because cars "are subjected to pervasive and continuing governmental regulation" and "periodic inspection," police stop and examine cars for vehicle code violations "[a]s an everyday occurrence," highway travel is "obviously public" because it subjects the occupants and contents of cars to "plain view," and cars "are frequently taken into police custody" as part of "community caretaking"). To similar effect is United States v Chadwick, 433 US 1, 12-13 (1977).
8. See South Dakota v Opperman, 428 US 364, 367-68 (1976) (reasoning that "the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office," because cars "are subjected to pervasive and continuing governmental regulation" and "periodic inspection," police stop and examine cars for vehicle code violations "[a]s an everyday occurrence," highway travel is "obviously public" because it subjects the occupants and contents of cars to "plain view," and cars "are frequently taken into police custody" as part of "community caretaking"). To similar effect is United States v Chadwick, 433 US 1, 12-13 (1977).
9. Warrantless inventory searches, initially predicated on the reduced expectation of privacy in a motor vehicle, see South Dakota v Opperman, 428 US 364 (1976), in time were extended to booking searches of arrestees, see Illinois v Lafayette, 462 US 640 (1983). Similarly, "protective sweeps" were approved first for cars, see Michigan v Long, 463 US 1032 (1983), then for houses, see Maryland v Buie, 494 US 325 (1990); and the Court's lenient approach to sobriety checkpoints, see Michigan Dep't of State Police v Sitz, 496 US 444 (1990), ultimately formed part of the basis for its approval of drug testing for student athletes, see Vernonia School District 47J v Acton, 115 S Ct 2386, 2391 (1995).
10. Warrantless inventory searches, initially predicated on the reduced expectation of privacy in a motor vehicle, see South Dakota v Opperman, 428 US 364 (1976), in time were extended to booking searches of arrestees, see Illinois v Lafayette, 462 US 640 (1983). Similarly, "protective sweeps" were approved first for cars, see Michigan v Long, 463 US 1032 (1983), then for houses, see Maryland v Buie, 494 US 325 (1990); and the Court's lenient approach to sobriety checkpoints, see Michigan Dep't of State Police v Sitz, 496 US 444 (1990), ultimately formed part of the basis for its approval of drug testing for student athletes, see Vernonia School District 47J v Acton, 115 S Ct 2386, 2391 (1995).
11. Warrantless inventory searches, initially predicated on the reduced expectation of privacy in a motor vehicle, see South Dakota v Opperman, 428 US 364 (1976), in time were extended to booking searches of arrestees, see Illinois v Lafayette, 462 US 640 (1983). Similarly, "protective sweeps" were approved first for cars, see Michigan v Long, 463 US 1032 (1983), then for houses, see Maryland v Buie, 494 US 325 (1990); and the Court's lenient approach to sobriety checkpoints, see Michigan Dep't of State Police v Sitz, 496 US 444 (1990), ultimately formed part of the basis for its approval of drug testing for student athletes, see Vernonia School District 47J v Acton, 115 S Ct 2386, 2391 (1995).
12. Warrantless inventory searches, initially predicated on the reduced expectation of privacy in a motor vehicle, see South Dakota v Opperman, 428 US 364 (1976), in time were extended to booking searches of arrestees, see Illinois v Lafayette, 462 US 640 (1983). Similarly, "protective sweeps" were approved first for cars, see Michigan v Long, 463 US 1032 (1983), then for houses, see Maryland v Buie, 494 US 325 (1990); and the Court's lenient approach to sobriety checkpoints, see Michigan Dep't of State Police v Sitz, 496 US 444 (1990), ultimately formed part of the basis for its approval of drug testing for student athletes, see Vernonia School District 47J v Acton, 115 S Ct 2386, 2391 (1995).
13. Warrantless inventory searches, initially predicated on the reduced expectation of privacy in a motor vehicle, see South Dakota v Opperman, 428 US 364 (1976), in time were extended to booking searches of arrestees, see Illinois v Lafayette, 462 US 640 (1983). Similarly, "protective sweeps" were approved first for cars, see Michigan v Long, 463 US 1032 (1983), then for houses, see Maryland v Buie, 494 US 325 (1990); and the Court's lenient approach to sobriety checkpoints, see Michigan Dep't of State Police v Sitz, 496 US 444 (1990), ultimately formed part of the basis for its approval of drug testing for student athletes, see Vernonia School District 47J v Acton, 115 S Ct 2386, 2391 (1995).
14. Warrantless inventory searches, initially predicated on the reduced expectation of privacy in a motor vehicle, see South Dakota v Opperman, 428 US 364 (1976), in time were extended to booking searches of arrestees, see Illinois v Lafayette, 462 US 640 (1983). Similarly, "protective sweeps" were approved first for cars, see Michigan v Long, 463 US 1032 (1983), then for houses, see Maryland v Buie, 494 US 325 (1990); and the Court's lenient approach to sobriety checkpoints, see Michigan Dep't of State Police v Sitz, 496 US 444 (1990), ultimately formed part of the basis for its approval of drug testing for student athletes, see Vernonia School District 47J v Acton, 115 S Ct 2386, 2391 (1995).
15. Whren v United States, 116 S Ct 1769 (1996).
16. Ornelas v United States, 116 S Ct 1657 (1996).
17. Ohio v Robinette, 117 S Ct 417 (1996).
18. Maryland v Wilson, 117 S Ct 882 (1997).
19. See, for example, Delaware v Prouse, 440 US 648, 653 (1979).
20. See, for example, United States v Watson, 423 US 411 (1976). Probable cause consists of "facts and circumstances" sufficient to lead a reasonable officer to believe that the suspect is committing or has committed an offense. Draper v United States, 358 US 307 (1959). The Court has resolutely refused to define the term with any further precision. See, for example, Illinois v Gates, 462 US 213, 232 (1983) (stressing that "probable cause is a fluid concept . . . not readily, or even usefully, reduced to a neat set of legal rules").
21. See, for example, United States v Watson, 423 US 411 (1976). Probable cause consists of "facts and circumstances" sufficient to lead a reasonable officer to believe that the suspect is committing or has committed an offense. Draper v United States, 358 US 307 (1959). The Court has resolutely refused to define the term with any further precision. See, for example, Illinois v Gates, 462 US 213, 232 (1983) (stressing that "probable cause is a fluid concept . . . not readily, or even usefully, reduced to a neat set of legal rules").
22. See, for example, United States v Watson, 423 US 411 (1976). Probable cause consists of "facts and circumstances" sufficient to lead a reasonable officer to believe that the suspect is committing or has committed an offense. Draper v United States, 358 US 307 (1959). The Court has resolutely refused to define the term with any further precision. See, for example, Illinois v Gates, 462 US 213, 232 (1983) (stressing that "probable cause is a fluid concept . . . not readily, or even usefully, reduced to a neat set of legal rules").
23. Terry v Ohio, 392 US 1, 20 (1968).
24. Brown v Texas, 443 US 47, 51 (1979). The Court has never made clear whether a traffic stop may be justified by reasonable suspicion, falling short of probable cause, that the driver has committed a noncriminal traffic offense. See Wayne R. LaFave, 4 Search and Seizure § 9.2(c) (West, 3d ed 1996). In practice the question rarely arises, because most stops for traffic violations follow the officer's direct observation of the violation.
25. Brown v Texas, 443 US 47, 51 (1979). The Court has never made clear whether a traffic stop may be justified by reasonable suspicion, falling short of probable cause, that the driver has committed a noncriminal traffic offense. See Wayne R. LaFave, 4 Search and Seizure § 9.2(c) (West, 3d ed 1996). In practice the question rarely arises, because most stops for traffic violations follow the officer's direct observation of the violation.
26. See Pennsylvania v Mimms, 434 US 106 (1977).
27. See Terry, 392 US at 27.
28. Michigan v Long, 463 US 1032, 1049-50 (1983).
29. Id at 1049; Terry, 392 US at 21.
30. Id at 1049; Terry, 392 US at 21.
31. See United States v Sharpe, 470 US 675 (1985).
32. See Pennsylvania v Labron, 116 S Ct 2485, 2487 (1996); California v Acevedo, 500 US 565, 569-70 (1991); Chambers v Maroney, 399 US 42 (1970).
33. See Pennsylvania v Labron, 116 S Ct 2485, 2487 (1996); California v Acevedo, 500 US 565, 569-70 (1991); Chambers v Maroney, 399 US 42 (1970).
34. See Pennsylvania v Labron, 116 S Ct 2485, 2487 (1996); California v Acevedo, 500 US 565, 569-70 (1991); Chambers v Maroney, 399 US 42 (1970).
35. Schneckloth v Bustamonte, 412 US 218, 233 (1973).
36. See Illinois v Rodriguez, 497 US 177 (1990).
37. 116 S Ct 1657 (1996).
38. Id at 1769.
39. 117 S Ct 417 (1996).
40. Id at 882.
41. One of the officers later explained that his suspicions initially were aroused by the car itself: an older model, two-door General Motors vehicle, "a favorite with drug couriers because it is easy to hide things in them," bearing license plates from California, "a 'source State' for drugs." Ornelas, 116 S Ct at 1659. The officers determined from a check of registration records that the car was owned by "either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California," and the motel registry revealed "Ismael Ornelas," accompanied by another man, had checked in at 4:00 in the morning without a reservation. Id. The officers then had the Drug Enforcement Administration check the Narcotics and Dangerous Drugs Information System (NADDIS) - "a federal database of known and suspected drug dealers" - for the names Miguel Ledesma Ornelas and Ismael Ornelas; both names turned up, one as a heroin dealer and one as a cocaine dealer. Id.
42. The district court also found that the defendants had consented to a search of the car. Under Seventh Circuit precedent, however, the consent search could not include removing the door panel, without probable cause to believe it concealed contraband or evidence. See United States v Garcia. 897 F2d 1413, 1419-20 (7th Cir 1990). The Supreme Court in Ornelas "assume[d] correct the Circuit's limitation on the scope of consent only for purposes of this decision." 116 S Ct at 1660 n 1.
43. United States v Ornelas-Ledesma, 16 F3d 714, 719 (7th Cir 1994), rev'd, 116 S Ct 1657 (1996).
44. The Court explained that " '[c]lear error' is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact." 116 S Ct at 1661 n 3.
45. See id at 1662.
46. Id at 1663.
47. Id.
48. Id. Given these broad hints, it should come as no surprise that on remand the court of appeals, applying the nominally more demanding standard of review prescribed by the Supreme Court, once again reaffirmed the district court's finding of reasonable suspicion. See United States v Ornelas, 96 F3d 1450, 1996 WL 508569 (7th Cir 1996).
49. Id at 1663-65 (Scalia dissenting).
50. Id at 1666.
51. 116 S Ct 1769 (1996).
52. Id at 1772. District of Columbia traffic laws prohibited turning without signaling, driving at "a speed greater than is reasonable and prudent under the conditions," and failing to "give full time and attention to the operation of the vehicle. " Id at 1772-73 (quoting 18 DC Mun Regs §§ 2204.3, 2200.3, 2213.4 (1995)).
53. Id at 1772. District of Columbia traffic laws prohibited turning without signaling, driving at "a speed greater than is reasonable and prudent under the conditions," and failing to "give full time and attention to the operation of the vehicle. " Id at 1772-73 (quoting 18 DC Mun Regs §§ 2204.3, 2200.3, 2213.4 (1995)).
54. Brief for the Petitioners at 2. Lower courts generally have held that "racial incongruity" may provide part but not all of the basis for reasonable suspicion. LaFave, 4 Search and Seizure § 9.4(f) at 183 n 220 (cited in note 13). See also United States v Brignoni-Ponce, 422 US 873, 885-87 (1975) (holding that "Mexican appearance" is a "relevant factor" but on its own cannot justify car stops by roving border patrol agents). For thoughtful criticism of permitting even this limited use of race, see Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L J 214 (1983); Developments in the Law - Race and the Criminal Process, 101 Harv L Rev 1472, 1500-20 (1988). The officers in Whren claimed that race had played no role in their decision to stop the Pathfinder. See United States v Whren, 53 F3d 371, 373 (DC Cir 1995), aff'd, 116 S Ct 1769 (1996).
55. Brief for the Petitioners at 2. Lower courts generally have held that "racial incongruity" may provide part but not all of the basis for reasonable suspicion. LaFave, 4 Search and Seizure § 9.4(f) at 183 n 220 (cited in note 13). See also United States v Brignoni-Ponce, 422 US 873, 885-87 (1975) (holding that "Mexican appearance" is a "relevant factor" but on its own cannot justify car stops by roving border patrol agents). For thoughtful criticism of permitting even this limited use of race, see Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L J 214 (1983); Developments in the Law - Race and the Criminal Process, 101 Harv L Rev 1472, 1500-20 (1988). The officers in Whren claimed that race had played no role in their decision to stop the Pathfinder. See United States v Whren, 53 F3d 371, 373 (DC Cir 1995), aff'd, 116 S Ct 1769 (1996).
56. Brief for the Petitioners at 2. Lower courts generally have held that "racial incongruity" may provide part but not all of the basis for reasonable suspicion. LaFave, 4 Search and Seizure § 9.4(f) at 183 n 220 (cited in note 13). See also United States v Brignoni-Ponce, 422 US 873, 885-87 (1975) (holding that "Mexican appearance" is a "relevant factor" but on its own cannot justify car stops by roving border patrol agents). For thoughtful criticism of permitting even this limited use of race, see Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L J 214 (1983); Developments in the Law - Race and the Criminal Process, 101 Harv L Rev 1472, 1500-20 (1988). The officers in Whren claimed that race had played no role in their decision to stop the Pathfinder. See United States v Whren, 53 F3d 371, 373 (DC Cir 1995), aff'd, 116 S Ct 1769 (1996).
57. Brief for the Petitioners at 2. Lower courts generally have held that "racial incongruity" may provide part but not all of the basis for reasonable suspicion. LaFave, 4 Search and Seizure § 9.4(f) at 183 n 220 (cited in note 13). See also United States v Brignoni-Ponce, 422 US 873, 885-87 (1975) (holding that "Mexican appearance" is a "relevant factor" but on its own cannot justify car stops by roving border patrol agents). For thoughtful criticism of permitting even this limited use of race, see Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L J 214 (1983); Developments in the Law - Race and the Criminal Process, 101 Harv L Rev 1472, 1500-20 (1988). The officers in Whren claimed that race had played no role in their decision to stop the Pathfinder. See United States v Whren, 53 F3d 371, 373 (DC Cir 1995), aff'd, 116 S Ct 1769 (1996).
58. Brief for the Petitioners at 2. Lower courts generally have held that "racial incongruity" may provide part but not all of the basis for reasonable suspicion. LaFave, 4 Search and Seizure § 9.4(f) at 183 n 220 (cited in note 13). See also United States v Brignoni-Ponce, 422 US 873, 885-87 (1975) (holding that "Mexican appearance" is a "relevant factor" but on its own cannot justify car stops by roving border patrol agents). For thoughtful criticism of permitting even this limited use of race, see Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L J 214 (1983); Developments in the Law - Race and the Criminal Process, 101 Harv L Rev 1472, 1500-20 (1988). The officers in Whren claimed that race had played no role in their decision to stop the Pathfinder. See United States v Whren, 53 F3d 371, 373 (DC Cir 1995), aff'd, 116 S Ct 1769 (1996).
59. 116 S Ct at 1772, 1775.
60. Id at 1774.
61. Id.
62. 117 S Ct 417 (1986).
63. Id at 419.
64. Like the officers in Whren, Newsome "was on drug interdiction patrol at the time." State v Robinette, 653 NE2d 695, 696 (Ohio 1995), rev'd, 117 S Ct 417 (1996). He testified that he routinely asked permission to search cars that he stopped for traffic violations. See id. As Justice Ginsburg noted in her concurring opinion, Newsome testified in another case that "he requested consent to search in 786 traffic stops in 1992, the year of Robinette's arrest." 117 S Ct at 422 (citing State v Rutherford, 639 NE2d 498, 503 n 3 (Ohio Ct App), dism'd, 635 NE2d 43 (Ohio 1994)).
65. Like the officers in Whren, Newsome "was on drug interdiction patrol at the time." State v Robinette, 653 NE2d 695, 696 (Ohio 1995), rev'd, 117 S Ct 417 (1996). He testified that he routinely asked permission to search cars that he stopped for traffic violations. See id. As Justice Ginsburg noted in her concurring opinion, Newsome testified in another case that "he requested consent to search in 786 traffic stops in 1992, the year of Robinette's arrest." 117 S Ct at 422 (citing State v Rutherford, 639 NE2d 498, 503 n 3 (Ohio Ct App), dism'd, 635 NE2d 43 (Ohio 1994)).
66. 653 NE2d 695, 698.
67. 117 S Ct at 421.
68. Id (quoting Schneckloth v Bustamonte, 412 US 218, 248-49 (1973)).
69. 117 S Ct at 421.
70. Id at 421-24. Justice Ginsburg agreed with the majority that "[t]he Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule," and that this ambiguity rendered appropriate the Court's exercise of jurisdiction under Michigan v Long, 463 US 1032 (1983). Id at 422.
71. Id at 421-24. Justice Ginsburg agreed with the majority that "[t]he Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule," and that this ambiguity rendered appropriate the Court's exercise of jurisdiction under Michigan v Long, 463 US 1032 (1983). Id at 422.
72. Id at 421-24. Justice Ginsburg agreed with the majority that "[t]he Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule," and that this ambiguity rendered appropriate the Court's exercise of jurisdiction under Michigan v Long, 463 US 1032 (1983). Id at 422.
73. Id at 424.
74. 117 S Ct 882 (1997).
75. See Pennsylvania v Mimms, 434 US 106 (1977).
76. 117 S Ct at 886.
77. Id. "In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops." Id at 885 (citing Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted (1994)). See also Lisa A. Regini, Extending the Mimms Rule to Include Passengers, FBI Law Enforcement Bull 27 (June 1997) (suggesting these dangers may make "routine traffic stops" the "most misnamed activity in law enforcement").
78. Id. "In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops." Id at 885 (citing Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted (1994)). See also Lisa A. Regini, Extending the Mimms Rule to Include Passengers, FBI Law Enforcement Bull 27 (June 1997) (suggesting these dangers may make "routine traffic stops" the "most misnamed activity in law enforcement").
79. 117 S Ct at 885.
80. Id at 887 (Stevens dissenting).
81. Id at 890 (Kennedy dissenting). Justice Kennedy ascribed this conclusion to Justice Stevens, whose dissent he also joined. Justice Stevens apparently recognized that Justice Kennedy's approach was less circumscribed than his own; he did not join Justice Kennedy's dissent.
82. Id at 422 (Ginsburg concurring).
83. The rule proposed by Justice Stevens - requiring an officer to have "an articulable suspicion of possible danger" before ordering a passenger out of a car, 117 S Ct at 887 (Stevens dissenting) - may even have been satisfied in the case before the Court. The officer who ordered Wilson out of the car testified that he did so because "movement in the vehicle" suggested to him that "there could be a handgun in the vehicle," and gave him concern for his safety. State v Wilson, 664 A2d 1, 2 (Md 1995), rev'd, 117 S Ct 882 (1997). For reasons the record does not disclose, the Maryland Court of Special Appeals nonetheless upheld the trial judge's finding that the officer did not act out of any "sense of heightened caution or apprehensiveness." Id at 15. Justice Kennedy joined Justice Stevens's opinion and also wrote a separate opinion suggesting that "the command to exit ought not to be given unless there are objective circumstances making it reasonable for the officer to issue the order." Id at 890 (Kennedy disenting). Although Justice Kennedy apparently saw no divergence between his standard and the rule advocated by Justice Stevens, the difference could in fact prove significant. By tying the legality of an exit command to what is "reasonable" under the circumstances, the test proposed by Justice Kennedy might disallow the command in some situations in which the per se rule endorsed by Justice Stevens would allow it: situations involving a small amount of posible danger, outweighed perhaps by the burden that leaving the car would impose on the passenger. Of greater importance, Justice Kennedy's open-ended test might allow passengers to be ordered out of cars in some situations lacking any indications of danger to the officer: "objective circumstances" making the order reasonable, Justice Kennedy suggested, could include not only indications of possible danger, but also "any circumstance justifying the order . . . to facilitate a lawful search or investigation." Id. "Since a myriad of circumstances will give a cautious officer reasonable grounds for commanding passengers to leave the vehicle," Justice Kennedy acknowledged that "it might be thought the rule the Court adopts today will be little different in its operation than the rule offered in dissent." Id at 890-91. He did not quarrel with that conclusion, suggesting only that "[i]t does no disservice to police officers . . . to insist upon exercise of reasoned judgment." Id at 891.
84. The rule proposed by Justice Stevens - requiring an officer to have "an articulable suspicion of possible danger" before ordering a passenger out of a car, 117 S Ct at 887 (Stevens dissenting) - may even have been satisfied in the case before the Court. The officer who ordered Wilson out of the car testified that he did so because "movement in the vehicle" suggested to him that "there could be a handgun in the vehicle," and gave him concern for his safety. State v Wilson, 664 A2d 1, 2 (Md 1995), rev'd, 117 S Ct 882 (1997). For reasons the record does not disclose, the Maryland Court of Special Appeals nonetheless upheld the trial judge's finding that the officer did not act out of any "sense of heightened caution or apprehensiveness." Id at 15. Justice Kennedy joined Justice Stevens's opinion and also wrote a separate opinion suggesting that "the command to exit ought not to be given unless there are objective circumstances making it reasonable for the officer to issue the order." Id at 890 (Kennedy disenting). Although Justice Kennedy apparently saw no divergence between his standard and the rule advocated by Justice Stevens, the difference could in fact prove significant. By tying the legality of an exit command to what is "reasonable" under the circumstances, the test proposed by Justice Kennedy might disallow the command in some situations in which the per se rule endorsed by Justice Stevens would allow it: situations involving a small amount of posible danger, outweighed perhaps by the burden that leaving the car would impose on the passenger. Of greater importance, Justice Kennedy's open-ended test might allow passengers to be ordered out of cars in some situations lacking any indications of danger to the officer: "objective circumstances" making the order reasonable, Justice Kennedy suggested, could include not only indications of possible danger, but also "any circumstance justifying the order . . . to facilitate a lawful search or investigation." Id. "Since a myriad of circumstances will give a cautious officer reasonable grounds for commanding passengers to leave the vehicle," Justice Kennedy acknowledged that "it might be thought the rule the Court adopts today will be little different in its operation than the rule offered in dissent." Id at 890-91. He did not quarrel with that conclusion, suggesting only that "[i]t does no disservice to police officers . . . to insist upon exercise of reasoned judgment." Id at 891.
85. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
86. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
87. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
88. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
89. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
90. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
91. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
92. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
93. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
94. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
95. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
96. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
97. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
98. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
99. See, for example, California v Acevedo, 500 US 565 (1991) (four opinions); Michigan Dep't of State Police v Sitz, 496 US 444 (1990) (four opinions); Minnesota v Olsen, 495 US 91 (1990) (four opinions); Florida v Wells, 495 US 1 (1990) (four opinions); Maryland v Buie, 494 US 325 (1990) (four opinions); United States v Verdugo-Urqiudez, 494 US 259 (1990) (five opinions); Florida v Riley, 488 US 445 (1989) (four opinions, no majority opinion); Arizona v Hicks, 480 US 321 (1987) (four opinions); Illinois v Gates, 462 US 213 (1983) (four opinions); Florida v Royer, 460 US 491 (1983) (five opinions, no majority opinion); Schneckloth v Bustamonte, 412 US 218 (1973) (six opinions); Coolidge v New Hamshire, 403 US 443 (1971) (five opinions, partial majority opinion); United States v White, 401 US 745 (1971) (five opinions and a "statement," no majority opinion); Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind L J 329 (1973) (observing that "the Supreme Court can seldom muster a majority on any important fourth amendment issue"); Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Proceduser": The Robinson Dilemma, 1974 Supreme Court Review 127, 127-28 & n 2 (noting multiple opinions and closely divided votes in Fourth Amendment cases decided in 1972 and 1973 Terms).
100. See for example, Bush v Vera, 116 S Ct 1941 (1996) (six opinions, no majority); Miller v Johnson, 115 S Ct 2475 (1995) (four opinions).
101. See for example, Bush v Vera, 116 S Ct 1941 (1996) (six opinions, no majority); Miller v Johnson, 115 S Ct 2475 (1995) (four opinions).
102. See, for example, Turner Broadcasting System, Inc v FCC, 117 S Ct 1174 (1997) (four opinions, partial majority); Denver Area Educ Telecom Consortium v FCC, 116 S, Ct 2374 (1996) (six opinions, partial majority); Colorado Republican Campaign Comm, v FEC, 116 S Ct 2309 (1996) (four opinions, no majority).
103. See, for example, Turner Broadcasting System, Inc v FCC, 117 S Ct 1174 (1997) (four opinions, partial majority); Denver Area Educ Telecom Consortium v FCC, 116 S, Ct 2374 (1996) (six opinions, partial majority); Colorado Republican Campaign Comm, v FEC, 116 S Ct 2309 (1996) (four opinions, no majority).
104. See, for example, Turner Broadcasting System, Inc v FCC, 117 S Ct 1174 (1997) (four opinions, partial majority); Denver Area Educ Telecom Consortium v FCC, 116 S, Ct 2374 (1996) (six opinions, partial majority); Colorado Republican Campaign Comm, v FEC, 116 S Ct 2309 (1996) (four opinions, no majority).
105. In addition to the cases discussed in the text, see Richards v Wisconsin, 117 S Ct 1416 (1997) (unanimous ruling that "no knock" searches may be "unreasonable" even in a drug case, although not in the case before the Court); Pennsylvania v Labron, 116 S Ct 2485 (1996) (per curiam holding that "automobile exception" to the warrant requirement does not require exigency); Wilson v Arkansas, 115 S Ct 1914, 1915 (1995) (unanimous ruling that the "common-law 'knock and announce' principle forms part of the reasonableness inquiry under the Fourth Amendment"); United States v Padilla, 508 US 77 (1993) (per curiam holding that criminal defendants lack standing to object to violations of the Fourth Amendment rights of their coconspirators).
106. In addition to the cases discussed in the text, see Richards v Wisconsin, 117 S Ct 1416 (1997) (unanimous ruling that "no knock" searches may be "unreasonable" even in a drug case, although not in the case before the Court); Pennsylvania v Labron, 116 S Ct 2485 (1996) (per curiam holding that "automobile exception" to the warrant requirement does not require exigency); Wilson v Arkansas, 115 S Ct 1914, 1915 (1995) (unanimous ruling that the "common-law 'knock and announce' principle forms part of the reasonableness inquiry under the Fourth Amendment"); United States v Padilla, 508 US 77 (1993) (per curiam holding that criminal defendants lack standing to object to violations of the Fourth Amendment rights of their coconspirators).
107. In addition to the cases discussed in the text, see Richards v Wisconsin, 117 S Ct 1416 (1997) (unanimous ruling that "no knock" searches may be "unreasonable" even in a drug case, although not in the case before the Court); Pennsylvania v Labron, 116 S Ct 2485 (1996) (per curiam holding that "automobile exception" to the warrant requirement does not require exigency); Wilson v Arkansas, 115 S Ct 1914, 1915 (1995) (unanimous ruling that the "common-law 'knock and announce' principle forms part of the reasonableness inquiry under the Fourth Amendment"); United States v Padilla, 508 US 77 (1993) (per curiam holding that criminal defendants lack standing to object to violations of the Fourth Amendment rights of their coconspirators).
108. In addition to the cases discussed in the text, see Richards v Wisconsin, 117 S Ct 1416 (1997) (unanimous ruling that "no knock" searches may be "unreasonable" even in a drug case, although not in the case before the Court); Pennsylvania v Labron, 116 S Ct 2485 (1996) (per curiam holding that "automobile exception" to the warrant requirement does not require exigency); Wilson v Arkansas, 115 S Ct 1914, 1915 (1995) (unanimous ruling that the "common-law 'knock and announce' principle forms part of the reasonableness inquiry under the Fourth Amendment"); United States v Padilla, 508 US 77 (1993) (per curiam holding that criminal defendants lack standing to object to violations of the Fourth Amendment rights of their coconspirators).
109. The Court can still divide noticeably when asked how the Fourth Amendment applies to government agencies other than the police. See Vernonia School District 47J v Acton 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). The majority in Acton, led by Justice Scalia, upheld a school district's program of mass, suspicionless drug testing of student athletes. Justice O'Connor, joined by Justices Stevens and Souter, dissented vehemently from the decision, and Justice Ginsburg, who joined the majority opinion, also wrote separately in an effort to limit the ruling. In Evans, the Court held that the Fourth Amendment does not require suppression of evidence seized during an illegal arrest resulting from a clerical mistake by court personnel. Chief Justice Rehnquist wrote for the majority, Justice O'Connor and Justice Souter each filed concurring opinions seeking to limit the scope of the ruling, and Justice Stevens and Justice Ginsburg each wrote dissents. The Court was less divided in Chandler v Miller, 117 S Ct 1295 (1977), when it struck down, over
110. The Court can still divide noticeably when asked how the Fourth Amendment applies to government agencies other than the police. See Vernonia School District 47J v Acton 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). The majority in Acton, led by Justice Scalia, upheld a school district's program of mass, suspicionless drug testing of student athletes. Justice O'Connor, joined by Justices Stevens and Souter, dissented vehemently from the decision, and Justice Ginsburg, who joined the majority opinion, also wrote separately in an effort to limit the ruling. In Evans, the Court held that the Fourth Amendment does not require suppression of evidence seized during an illegal arrest resulting from a clerical mistake by court personnel. Chief Justice Rehnquist wrote for the majority, Justice O'Connor and Justice Souter each filed concurring opinions seeking to limit the scope of the ruling, and Justice Stevens and Justice Ginsburg each wrote dissents. The Court was less divided in Chandler v Miller, 117 S Ct 1295 (1977), when it struck down, over Chief Justice Rehnquist's lone dissent, a Georgia statute requiring candidates for certain elected positions to take urinalysis drug tests. As I discuss later, this may have had to do with the fact that among those Georgians subjected to drug testing were candidates for seats on the state supreme court, court of appeals, and superior courts. See note 151 and accompanying text.
111. The Court can still divide noticeably when asked how the Fourth Amendment applies to government agencies other than the police. See Vernonia School District 47J v Acton 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). The majority in Acton, led by Justice Scalia, upheld a school district's program of mass, suspicionless drug testing of student athletes. Justice O'Connor, joined by Justices Stevens and Souter, dissented vehemently from the decision, and Justice Ginsburg, who joined the majority opinion, also wrote separately in an effort to limit the ruling. In Evans, the Court held that the Fourth Amendment does not require suppression of evidence seized during an illegal arrest resulting from a clerical mistake by court personnel. Chief Justice Rehnquist wrote for the majority, Justice O'Connor and Justice Souter each filed concurring opinions seeking to limit the scope of the ruling, and Justice Stevens and Justice Ginsburg each wrote dissents. The Court was less divided in Chandler v Miller, 117 S Ct 1295 (1977), when it struck down, over Chief Justice Rehnquist's lone dissent, a Georgia statute requiring candidates for certain elected positions to take urinalysis drug tests. As I discuss later, this may have had to do with the fact that among those Georgians subjected to drug testing were candidates for seats on the state supreme court, court of appeals, and superior courts. See note 151 and accompanying text.
112. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
113. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
114. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
115. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
116. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
117. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
118. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
119. In addition to the cases discussed in text, see Vernonia School District 47J v Acton, 115 S Ct 2386 (1995) (Scalia); Arizona v Evans, 115 S Ct 1185 (1995) (Rehnquist); Wilson v Arkansas, 115 S Ct 1914 (1995) (Thomas). An exception is Richards v Wisconsin 117 S Ct 1416 (1997) (Stevens). Justice Thomas and Chief Justice Rehnquist have been in the majority of all but three of the Fourth Amendment cases the Court has decided since Thomas joined the Court in 1993. The exceptions are Minnesota v Dickerson, 508 US 366 (1993), Powell v Nevada, 511 US 79 (1994), and Chandler v Miller, 117 S Ct 1295 (1997). The holding in Powell was relatively technical: the Court ruled that County of Riverside v McLaughlin, 500 US 44 (1991), which found the Fourth Amendment to require that suspects arrested without warrant ordinarily receive a judicial determination of probable cause within 48 hours, applied retroactively. The Chief Justice joined Justice Thomas's dissent. In Dickerson, the Chief Justice wrote the dissent, joined by Justice Thomas and Justice Blackmun. The principle holding in that case, with which all nine justice agreed, was that the Minnesota Supreme Court had erred in ruling that officers may not seize nonthreatening contraband detected during a protective patdown search. The majority, led by Justice White, nonetheless affirmed the Minnesota court's reversal of Dickerson's conviction, reasoning that the patdown exceeded permissible limits; the dissenters would have remanded that issue. In Chandler, a majority of eight, led by Justice Ginsburg, struck down a Georgia statute requiring candidates for a wide range of executive and judicial positions to take drug tests; Chief Justice Rehnquist was the lone dissenter.
120. See, for example, Stansbury v California, 114 S Ct 1526, 1529-30 (1994); Illinois v Rodriguez, 497 US 177, 185-86 (1990); New York v Quarles, 467 US 649, 656 n 6 (1984). At times the Court has even said things like "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v United States, 436 US 128, 138 (1978) (Rehnquist).
121. See, for example, Stansbury v California, 114 S Ct 1526, 1529-30 (1994); Illinois v Rodriguez, 497 US 177, 185-86 (1990); New York v Quarles, 467 US 649, 656 n 6 (1984). At times the Court has even said things like "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v United States, 436 US 128, 138 (1978) (Rehnquist).
122. See, for example, Stansbury v California, 114 S Ct 1526, 1529-30 (1994); Illinois v Rodriguez, 497 US 177, 185-86 (1990); New York v Quarles, 467 US 649, 656 n 6 (1984). At times the Court has even said things like "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v United States, 436 US 128, 138 (1978) (Rehnquist).
123. See, for example, Stansbury v California, 114 S Ct 1526, 1529-30 (1994); Illinois v Rodriguez, 497 US 177, 185-86 (1990); New York v Quarles, 467 US 649, 656 n 6 (1984). At times the Court has even said things like "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v United States, 436 US 128, 138 (1978) (Rehnquist).
124. See, for example, South Dakota v Opperman, 428 US 364, 375-76 (1976) (upholding warrantless inventory searches of impounded automobiles for "caretaking" purposes) (followed in Colorado v Bertine, 479 US 367, 372 (1987) and Florida v Wells, 495 US 1, 4 (1990)); United States v Massiah, 377 US 201 (1964) (holding that Sixth Amendment barred use against defendant of statements "deliberately elicited from him after he had been indicted and in the absence of his counsel") (followed in Brewer v Williams, 430 US 387 (1977), and United States v Henry, 447 US 264 (1980)); United States v Lefkowitz, 285 US 452, 467 (1932) (holding that "[a]n arrest may not be used as a pretext to search for evidence").
125. See, for example, South Dakota v Opperman, 428 US 364, 375-76 (1976) (upholding warrantless inventory searches of impounded automobiles for "caretaking" purposes) (followed in Colorado v Bertine, 479 US 367, 372 (1987) and Florida v Wells, 495 US 1, 4 (1990)); United States v Massiah, 377 US 201 (1964) (holding that Sixth Amendment barred use against defendant of statements "deliberately elicited from him after he had been indicted and in the absence of his counsel") (followed in Brewer v Williams, 430 US 387 (1977), and United States v Henry, 447 US 264 (1980)); United States v Lefkowitz, 285 US 452, 467 (1932) (holding that "[a]n arrest may not be used as a pretext to search for evidence").
126. See, for example, South Dakota v Opperman, 428 US 364, 375-76 (1976) (upholding warrantless inventory searches of impounded automobiles for "caretaking" purposes) (followed in Colorado v Bertine, 479 US 367, 372 (1987) and Florida v Wells, 495 US 1, 4 (1990)); United States v Massiah, 377 US 201 (1964) (holding that Sixth Amendment barred use against defendant of statements "deliberately elicited from him after he had been indicted and in the absence of his counsel") (followed in Brewer v Williams, 430 US 387 (1977), and United States v Henry, 447 US 264 (1980)); United States v Lefkowitz, 285 US 452, 467 (1932) (holding that "[a]n arrest may not be used as a pretext to search for evidence").
127. See, for example, South Dakota v Opperman, 428 US 364, 375-76 (1976) (upholding warrantless inventory searches of impounded automobiles for "caretaking" purposes) (followed in Colorado v Bertine, 479 US 367, 372 (1987) and Florida v Wells, 495 US 1, 4 (1990)); United States v Massiah, 377 US 201 (1964) (holding that Sixth Amendment barred use against defendant of statements "deliberately elicited from him after he had been indicted and in the absence of his counsel") (followed in Brewer v Williams, 430 US 387 (1977), and United States v Henry, 447 US 264 (1980)); United States v Lefkowitz, 285 US 452, 467 (1932) (holding that "[a]n arrest may not be used as a pretext to search for evidence").
128. See, for example, South Dakota v Opperman, 428 US 364, 375-76 (1976) (upholding warrantless inventory searches of impounded automobiles for "caretaking" purposes) (followed in Colorado v Bertine, 479 US 367, 372 (1987) and Florida v Wells, 495 US 1, 4 (1990)); United States v Massiah, 377 US 201 (1964) (holding that Sixth Amendment barred use against defendant of statements "deliberately elicited from him after he had been indicted and in the absence of his counsel") (followed in Brewer v Williams, 430 US 387 (1977), and United States v Henry, 447 US 264 (1980)); United States v Lefkowitz, 285 US 452, 467 (1932) (holding that "[a]n arrest may not be used as a pretext to search for evidence").
129. See, for example, South Dakota v Opperman, 428 US 364, 375-76 (1976) (upholding warrantless inventory searches of impounded automobiles for "caretaking" purposes) (followed in Colorado v Bertine, 479 US 367, 372 (1987) and Florida v Wells, 495 US 1, 4 (1990)); United States v Massiah, 377 US 201 (1964) (holding that Sixth Amendment barred use against defendant of statements "deliberately elicited from him after he had been indicted and in the absence of his counsel") (followed in Brewer v Williams, 430 US 387 (1977), and United States v Henry, 447 US 264 (1980)); United States v Lefkowitz, 285 US 452, 467 (1932) (holding that "[a]n arrest may not be used as a pretext to search for evidence").
130. See, for example, South Dakota v Opperman, 428 US 364, 375-76 (1976) (upholding warrantless inventory searches of impounded automobiles for "caretaking" purposes) (followed in Colorado v Bertine, 479 US 367, 372 (1987) and Florida v Wells, 495 US 1, 4 (1990)); United States v Massiah, 377 US 201 (1964) (holding that Sixth Amendment barred use against defendant of statements "deliberately elicited from him after he had been indicted and in the absence of his counsel") (followed in Brewer v Williams, 430 US 387 (1977), and United States v Henry, 447 US 264 (1980)); United States v Lefkowitz, 285 US 452, 467 (1932) (holding that "[a]n arrest may not be used as a pretext to search for evidence").
131. See, for example, New York v Burger, 482 US 691, 716 n 27 (1987) (upholding warrantless administrative inspection in part because neither legislature nor officers appeared to have used the inspection as a "pretext" to search for evidence of crime); Arizona v Mauro, 481 US 520, 528 (1987) (finding Miranda warnings unnecessary in part because police did not appear to have acted "for the purpose of eliciting incriminating statements"); Jones v United States, 357 US 493, 500 (1958) (invalidating search in part because "[t]he testimony of the federal officers makes clear beyond dispute that their purpose in entering was to search for distilling equipment, not to arrest petitioner").
132. See, for example, New York v Burger, 482 US 691, 716 n 27 (1987) (upholding warrantless administrative inspection in part because neither legislature nor officers appeared to have used the inspection as a "pretext" to search for evidence of crime); Arizona v Mauro, 481 US 520, 528 (1987) (finding Miranda warnings unnecessary in part because police did not appear to have acted "for the purpose of eliciting incriminating statements"); Jones v United States, 357 US 493, 500 (1958) (invalidating search in part because "[t]he testimony of the federal officers makes clear beyond dispute that their purpose in entering was to search for distilling equipment, not to arrest petitioner").
133. See, for example, New York v Burger, 482 US 691, 716 n 27 (1987) (upholding warrantless administrative inspection in part because neither legislature nor officers appeared to have used the inspection as a "pretext" to search for evidence of crime); Arizona v Mauro, 481 US 520, 528 (1987) (finding Miranda warnings unnecessary in part because police did not appear to have acted "for the purpose of eliciting incriminating statements"); Jones v United States, 357 US 493, 500 (1958) (invalidating search in part because "[t]he testimony of the federal officers makes clear beyond dispute that their purpose in entering was to search for distilling equipment, not to arrest petitioner").
134. Justice Scalia correctly pointed out that both Burger and Opperman involved searches made without probable cause. See Whren, 116 S Ct at 1773. The same could be said of Jones. What he did not explain was why this distinction should make all the difference.
135. See, for example, Skinner v Railway Labor Executives' Ass'n, 489 US 602, 621 n 25 (1989) ("leav[ing] for another day the question whether routine use in criminal prosecutions of evidence obtained pursuant to the [Federal Railway Administration's drug testing program] would give rise to an inference of pretext, or otherwise impugn the administrative nature of the FRA's program"); O'Connor v Ortega, 480 US 709, 723 (1987) ("leav[ing] for another day" application of the Fourth Amendment to workplace searches by government employers for purposes unrelated to work); United States v Robinson, 414 US 218 (1973) ("leav[ing] for another day questions which would arise" if the arrest giving rise to a search was "a departure from established police department practices").
136. See, for example, Skinner v Railway Labor Executives' Ass'n, 489 US 602, 621 n 25 (1989) ("leav[ing] for another day the question whether routine use in criminal prosecutions of evidence obtained pursuant to the [Federal Railway Administration's drug testing program] would give rise to an inference of pretext, or otherwise impugn the administrative nature of the FRA's program"); O'Connor v Ortega, 480 US 709, 723 (1987) ("leav[ing] for another day" application of the Fourth Amendment to workplace searches by government employers for purposes unrelated to work); United States v Robinson, 414 US 218 (1973) ("leav[ing] for another day questions which would arise" if the arrest giving rise to a search was "a departure from established police department practices").
137. See, for example, Skinner v Railway Labor Executives' Ass'n, 489 US 602, 621 n 25 (1989) ("leav[ing] for another day the question whether routine use in criminal prosecutions of evidence obtained pursuant to the [Federal Railway Administration's drug testing program] would give rise to an inference of pretext, or otherwise impugn the administrative nature of the FRA's program"); O'Connor v Ortega, 480 US 709, 723 (1987) ("leav[ing] for another day" application of the Fourth Amendment to workplace searches by government employers for purposes unrelated to work); United States v Robinson, 414 US 218 (1973) ("leav[ing] for another day questions which would arise" if the arrest giving rise to a search was "a departure from established police department practices").
138. See, for example, LaFave, 1974 Supreme Court Review at 152-53 (cited in note 60); Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L Rev 221, 254-58 (1989). For concise accounts of the resentments provoked by general warrants and writs of assistance, and the key role these resentments played in the drafting and adoption of the Fourth Amendment, the classic sources are Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 43-78 (Johns Hopkins, 1937), and Telford Taylor, Search, Seizure, and Surveillance, in Two Studies in Constitutional Interpretation 19, 24-38 (Ohio State, 1969). Essentially, general warrants were broad grants of authority from the executive to crown officers to search for and to arrest certain offenders, generally printers and publishers of seditious libel, and to search for and seize their papers. In the 1760s, Lord Camden and Lord Mansfield struck down these warrants in a series of decisions well known and widely applauded in the colonies. Writs of assistance were legislative acts empowering colonial revenue agents to search for smuggled goods. In 1761, James Otis argued famously but unsuccessfully against renewal of the writs in Massachusetts. General warrants were disfavored partly because they authorized broadscale seizure of all the offenders' papers, and partly because they gave crown officers wide discretion in determining who the offenders were. Writs of assistance were resented because of the virtually unlimited discretion they gave revenue agents to decide when, where, and how to search for contraband. This history recently has been placed in wider context by William Cuddihy's unpublished 1990 Ph.D. thesis, The Fourth Amendment: Origins and Original Meaning, 1602-1791. For a useful summary of that "exhaustive" and "exhausting" work, see Morgan Cloud, Searching through History; Searching for History, 63 U Chi L Rev 1707, 1713 (1996).
139. See, for example, LaFave, 1974 Supreme Court Review at 152-53 (cited in note 60); Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L Rev 221, 254-58 (1989). For concise accounts of the resentments provoked by general warrants and writs of assistance, and the key role these resentments played in the drafting and adoption of the Fourth Amendment, the classic sources are Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 43-78 (Johns Hopkins, 1937), and Telford Taylor, Search, Seizure, and Surveillance, in Two Studies in Constitutional Interpretation 19, 24-38 (Ohio State, 1969). Essentially, general warrants were broad grants of authority from the executive to crown officers to search for and to arrest certain offenders, generally printers and publishers of seditious libel, and to search for and seize their papers. In the 1760s, Lord Camden and Lord Mansfield struck down these warrants in a series of decisions well known and widely applauded in the colonies. Writs of assistance were legislative acts empowering colonial revenue agents to search for smuggled goods. In 1761, James Otis argued famously but unsuccessfully against renewal of the writs in Massachusetts. General warrants were disfavored partly because they authorized broadscale seizure of all the offenders' papers, and partly because they gave crown officers wide discretion in determining who the offenders were. Writs of assistance were resented because of the virtually unlimited discretion they gave revenue agents to decide when, where, and how to search for contraband. This history recently has been placed in wider context by William Cuddihy's unpublished 1990 Ph.D. thesis, The Fourth Amendment: Origins and Original Meaning, 1602-1791. For a useful summary of that "exhaustive" and "exhausting" work, see Morgan Cloud, Searching through History; Searching for History, 63 U Chi L Rev 1707, 1713 (1996).
140. See, for example, LaFave, 1974 Supreme Court Review at 152-53 (cited in note 60); Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L Rev 221, 254-58 (1989). For concise accounts of the resentments provoked by general warrants and writs of assistance, and the key role these resentments played in the drafting and adoption of the Fourth Amendment, the classic sources are Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 43-78 (Johns Hopkins, 1937), and Telford Taylor, Search, Seizure, and Surveillance, in Two Studies in Constitutional Interpretation 19, 24-38 (Ohio State, 1969). Essentially, general warrants were broad grants of authority from the executive to crown officers to search for and to arrest certain offenders, generally printers and publishers of seditious libel, and to search for and seize their papers. In the 1760s, Lord Camden and Lord Mansfield struck down these warrants in a series of decisions well known and widely applauded in the colonies. Writs of assistance were legislative acts empowering colonial revenue agents to search for smuggled goods. In 1761, James Otis argued famously but unsuccessfully against renewal of the writs in Massachusetts. General warrants were disfavored partly because they authorized broadscale seizure of all the offenders' papers, and partly because they gave crown officers wide discretion in determining who the offenders were. Writs of assistance were resented because of the virtually unlimited discretion they gave revenue agents to decide when, where, and how to search for contraband. This history recently has been placed in wider context by William Cuddihy's unpublished 1990 Ph.D. thesis, The Fourth Amendment: Origins and Original Meaning, 1602-1791. For a useful summary of that "exhaustive" and "exhausting" work, see Morgan Cloud, Searching through History; Searching for History, 63 U Chi L Rev 1707, 1713 (1996).
141. See, for example, LaFave, 1974 Supreme Court Review at 152-53 (cited in note 60); Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L Rev 221, 254-58 (1989). For concise accounts of the resentments provoked by general warrants and writs of assistance, and the key role these resentments played in the drafting and adoption of the Fourth Amendment, the classic sources are Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 43-78 (Johns Hopkins, 1937), and Telford Taylor, Search, Seizure, and Surveillance, in Two Studies in Constitutional Interpretation 19, 24-38 (Ohio State, 1969). Essentially, general warrants were broad grants of authority from the executive to crown officers to search for and to arrest certain offenders, generally printers and publishers of seditious libel, and to search for and seize their papers. In the 1760s, Lord Camden and Lord Mansfield struck down these warrants in a series of decisions well known and widely applauded in the colonies. Writs of assistance were legislative acts empowering colonial revenue agents to search for smuggled goods. In 1761, James Otis argued famously but unsuccessfully against renewal of the writs in Massachusetts. General warrants were disfavored partly because they authorized broadscale seizure of all the offenders' papers, and partly because they gave crown officers wide discretion in determining who the offenders were. Writs of assistance were resented because of the virtually unlimited discretion they gave revenue agents to decide when, where, and how to search for contraband. This history recently has been placed in wider context by William Cuddihy's unpublished 1990 Ph.D. thesis, The Fourth Amendment: Origins and Original Meaning, 1602-1791. For a useful summary of that "exhaustive" and "exhausting" work, see Morgan Cloud, Searching through History; Searching for History, 63 U Chi L Rev 1707, 1713 (1996).
142. See, for example, LaFave, 1974 Supreme Court Review at 152-53 (cited in note 60); Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L Rev 221, 254-58 (1989). For concise accounts of the resentments provoked by general warrants and writs of assistance, and the key role these resentments played in the drafting and adoption of the Fourth Amendment, the classic sources are Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 43-78 (Johns Hopkins, 1937), and Telford Taylor, Search, Seizure, and Surveillance, in Two Studies in Constitutional Interpretation 19, 24-38 (Ohio State, 1969). Essentially, general warrants were broad grants of authority from the executive to crown officers to search for and to arrest certain offenders, generally printers and publishers of seditious libel, and to search for and seize their papers. In the 1760s, Lord Camden and Lord Mansfield struck down these warrants in a series of decisions well known and widely applauded in the colonies. Writs of assistance were legislative acts empowering colonial revenue agents to search for smuggled goods. In 1761, James Otis argued famously but unsuccessfully against renewal of the writs in Massachusetts. General warrants were disfavored partly because they authorized broadscale seizure of all the offenders' papers, and partly because they gave crown officers wide discretion in determining who the offenders were. Writs of assistance were resented because of the virtually unlimited discretion they gave revenue agents to decide when, where, and how to search for contraband. This history recently has been placed in wider context by William Cuddihy's unpublished 1990 Ph.D. thesis, The Fourth Amendment: Origins and Original Meaning, 1602-1791. For a useful summary of that "exhaustive" and "exhausting" work, see Morgan Cloud, Searching through History; Searching for History, 63 U Chi L Rev 1707, 1713 (1996).
143. See, for example, LaFave, 1974 Supreme Court Review at 152-53 (cited in note 60); Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L Rev 221, 254-58 (1989). For concise accounts of the resentments provoked by general warrants and writs of assistance, and the key role these resentments played in the drafting and adoption of the Fourth Amendment, the classic sources are Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 43-78 (Johns Hopkins, 1937), and Telford Taylor, Search, Seizure, and Surveillance, in Two Studies in Constitutional Interpretation 19, 24-38 (Ohio State, 1969). Essentially, general warrants were broad grants of authority from the executive to crown officers to search for and to arrest certain offenders, generally printers and publishers of seditious libel, and to search for and seize their papers. In the 1760s, Lord Camden and Lord Mansfield struck down these warrants in a series of decisions well known and widely applauded in the colonies. Writs of assistance were legislative acts empowering colonial revenue agents to search for smuggled goods. In 1761, James Otis argued famously but unsuccessfully against renewal of the writs in Massachusetts. General warrants were disfavored partly because they authorized broadscale seizure of all the offenders' papers, and partly because they gave crown officers wide discretion in determining who the offenders were. Writs of assistance were resented because of the virtually unlimited discretion they gave revenue agents to decide when, where, and how to search for contraband. This history recently has been placed in wider context by William Cuddihy's unpublished 1990 Ph.D. thesis, The Fourth Amendment: Origins and Original Meaning, 1602-1791. For a useful summary of that "exhaustive" and "exhausting" work, see Morgan Cloud, Searching through History; Searching for History, 63 U Chi L Rev 1707, 1713 (1996).
144. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 417 (1974). See also, for example, Camara v Municipal Court, 387 US 523, 528 (1967) (noting that "the basic purpose" of the Fourth Amendment, "as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials"); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm & Mary L Rev 197, 201 (1993) (arguing that "the central meaning of the Fourth Amendment is distrust of police power and discretion").
145. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 417 (1974). See also, for example, Camara v Municipal Court, 387 US 523, 528 (1967) (noting that "the basic purpose" of the Fourth Amendment, "as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials"); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm & Mary L Rev 197, 201 (1993) (arguing that "the central meaning of the Fourth Amendment is distrust of police power and discretion").
146. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 417 (1974). See also, for example, Camara v Municipal Court, 387 US 523, 528 (1967) (noting that "the basic purpose" of the Fourth Amendment, "as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials"); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm & Mary L Rev 197, 201 (1993) (arguing that "the central meaning of the Fourth Amendment is distrust of police power and discretion").
147. Debate continued for two decades, for example, about what sense to make of the Supreme Court's statement in United States v Scott, 436 US 128, 138 (1978), that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action" - and, in particular, about whether the Supreme Court adopted the government's broad claim in that case that "subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." See, for example, LaFave, 1 Search and Seizure § 1.4(e) at 105 (cited in note 13) (arguing that Scott "can hardly be read as a definitive analysis settling that in all circumstances Fourth Amendment suppression issues are to be resolved without assaying 'the underlying intent or motivation of the officers involved,'" but that "this is precisely what the rule ought to be"); id at 102-25 & nn 61, 62, & 70 (summarizing and citing cases); John M. Burkoff, The Pretext Search Doctrine Returns after Never Leaving, 66 U Detroit L Rev 363, 372 (1989) (contending that "Supreme Court decisions handed down both before and after the Scott decision have neither uniformly adopted nor applied an objective fourth amendment test as was seemingly dictated by Scott"); John M. Burkoff, Bad Faith Searches, 57 NYU L Rev 70, 74-75 (1982) (calling the broad language of Scott "mere dicta," and arguing that "[r]easons of policy as well as doctrinal consistency require that the case be read more narrowly"); James B. Haddad, Pretextual Fourth Amendment Activity: Another Viewpoint, 18 U Mich J L Ref 639, 674 (1989) (noting that "Scott did not involve a pretext claim," but arguing that the Supreme Court, properly, has never invalidated an otherwise valid search or seizure on the ground that the officers lacked the proper motive).
148. Debate continued for two decades, for example, about what sense to make of the Supreme Court's statement in United States v Scott, 436 US 128, 138 (1978), that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action" - and, in particular, about whether the Supreme Court adopted the government's broad claim in that case that "subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." See, for example, LaFave, 1 Search and Seizure § 1.4(e) at 105 (cited in note 13) (arguing that Scott "can hardly be read as a definitive analysis settling that in all circumstances Fourth Amendment suppression issues are to be resolved without assaying 'the underlying intent or motivation of the officers involved,'" but that "this is precisely what the rule ought to be"); id at 102-25 & nn 61, 62, & 70 (summarizing and citing cases); John M. Burkoff, The Pretext Search Doctrine Returns after Never Leaving, 66 U Detroit L Rev 363, 372 (1989) (contending that "Supreme Court decisions handed down both before and after the Scott decision have neither uniformly adopted nor applied an objective fourth amendment test as was seemingly dictated by Scott"); John M. Burkoff, Bad Faith Searches, 57 NYU L Rev 70, 74-75 (1982) (calling the broad language of Scott "mere dicta," and arguing that "[r]easons of policy as well as doctrinal consistency require that the case be read more narrowly"); James B. Haddad, Pretextual Fourth Amendment Activity: Another Viewpoint, 18 U Mich J L Ref 639, 674 (1989) (noting that "Scott did not involve a pretext claim," but arguing that the Supreme Court, properly, has never invalidated an otherwise valid search or seizure on the ground that the officers lacked the proper motive).
149. Debate continued for two decades, for example, about what sense to make of the Supreme Court's statement in United States v Scott, 436 US 128, 138 (1978), that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action" - and, in particular, about whether the Supreme Court adopted the government's broad claim in that case that "subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." See, for example, LaFave, 1 Search and Seizure § 1.4(e) at 105 (cited in note 13) (arguing that Scott "can hardly be read as a definitive analysis settling that in all circumstances Fourth Amendment suppression issues are to be resolved without assaying 'the underlying intent or motivation of the officers involved,'" but that "this is precisely what the rule ought to be"); id at 102-25 & nn 61, 62, & 70 (summarizing and citing cases); John M. Burkoff, The Pretext Search Doctrine Returns after Never Leaving, 66 U Detroit L Rev 363, 372 (1989) (contending that "Supreme Court decisions handed down both before and after the Scott decision have neither uniformly adopted nor applied an objective fourth amendment test as was seemingly dictated by Scott"); John M. Burkoff, Bad Faith Searches, 57 NYU L Rev 70, 74-75 (1982) (calling the broad language of Scott "mere dicta," and arguing that "[r]easons of policy as well as doctrinal consistency require that the case be read more narrowly"); James B. Haddad, Pretextual Fourth Amendment Activity: Another Viewpoint, 18 U Mich J L Ref 639, 674 (1989) (noting that "Scott did not involve a pretext claim," but arguing that the Supreme Court, properly, has never invalidated an otherwise valid search or seizure on the ground that the officers lacked the proper motive).
150. Debate continued for two decades, for example, about what sense to make of the Supreme Court's statement in United States v Scott, 436 US 128, 138 (1978), that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action" - and, in particular, about whether the Supreme Court adopted the government's broad claim in that case that "subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." See, for example, LaFave, 1 Search and Seizure § 1.4(e) at 105 (cited in note 13) (arguing that Scott "can hardly be read as a definitive analysis settling that in all circumstances Fourth Amendment suppression issues are to be resolved without assaying 'the underlying intent or motivation of the officers involved,'" but that "this is precisely what the rule ought to be"); id at 102-25 & nn 61, 62, & 70 (summarizing and citing cases); John M. Burkoff, The Pretext Search Doctrine Returns after Never Leaving, 66 U Detroit L Rev 363, 372 (1989) (contending that "Supreme Court decisions handed down both before and after the Scott decision have neither uniformly adopted nor applied an objective fourth amendment test as was seemingly dictated by Scott"); John M. Burkoff, Bad Faith Searches, 57 NYU L Rev 70, 74-75 (1982) (calling the broad language of Scott "mere dicta," and arguing that "[r]easons of policy as well as doctrinal consistency require that the case be read more narrowly"); James B. Haddad, Pretextual Fourth Amendment Activity: Another Viewpoint, 18 U Mich J L Ref 639, 674 (1989) (noting that "Scott did not involve a pretext claim," but arguing that the Supreme Court, properly, has never invalidated an otherwise valid search or seizure on the ground that the officers lacked the proper motive).
151. Debate continued for two decades, for example, about what sense to make of the Supreme Court's statement in United States v Scott, 436 US 128, 138 (1978), that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action" - and, in particular, about whether the Supreme Court adopted the government's broad claim in that case that "subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." See, for example, LaFave, 1 Search and Seizure § 1.4(e) at 105 (cited in note 13) (arguing that Scott "can hardly be read as a definitive analysis settling that in all circumstances Fourth Amendment suppression issues are to be resolved without assaying 'the underlying intent or motivation of the officers involved,'" but that "this is precisely what the rule ought to be"); id at 102-25 & nn 61, 62, & 70 (summarizing and citing cases); John M. Burkoff, The Pretext Search Doctrine Returns after Never Leaving, 66 U Detroit L Rev 363, 372 (1989) (contending that "Supreme Court decisions handed down both before and after the Scott decision have neither uniformly adopted nor applied an objective fourth amendment test as was seemingly dictated by Scott"); John M. Burkoff, Bad Faith Searches, 57 NYU L Rev 70, 74-75 (1982) (calling the broad language of Scott "mere dicta," and arguing that "[r]easons of policy as well as doctrinal consistency require that the case be read more narrowly"); James B. Haddad, Pretextual Fourth Amendment Activity: Another Viewpoint, 18 U Mich J L Ref 639, 674 (1989) (noting that "Scott did not involve a pretext claim," but arguing that the Supreme Court, properly, has never invalidated an otherwise valid search or seizure on the ground that the officers lacked the proper motive).
152. 116 S Ct at 1774.
153. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v Blumenthal, 895 P2d 430 (Wash Ct App 1995); LaFave, 1 Search and Seizure § 1.4(e) at 119-20 & nn 55-59 (cited in note 13) (citing cases). None of the scholarly and judicial support for the defendants' position was noted in the Court's opinion.
154. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v Blumenthal, 895 P2d 430 (Wash Ct App 1995); LaFave, 1 Search and Seizure § 1.4(e) at 119-20 & nn 55-59 (cited in note 13) (citing cases). None of the scholarly and judicial support for the defendants' position was noted in the Court's opinion.
155. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v Blumenthal, 895 P2d 430 (Wash Ct App 1995); LaFave, 1 Search and Seizure § 1.4(e) at 119-20 & nn 55-59 (cited in note 13) (citing cases). None of the scholarly and judicial support for the defendants' position was noted in the Court's opinion.
156. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v
157. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v Blumenthal, 895 P2d 430 (Wash Ct App 1995); LaFave, 1 Search and Seizure § 1.4(e) at 119-20 & nn 55-59 (cited in note 13) (citing cases). None of the scholarly and judicial support for the defendants' position was noted in the Court's opinion.
158. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v Blumenthal, 895 P2d 430 (Wash Ct App 1995); LaFave, 1 Search and Seizure § 1.4(e) at 119-20 & nn 55-59 (cited in note 13) (citing cases). None of the scholarly and judicial support for the defendants' position was noted in the Court's opinion.
159. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v Blumenthal, 895 P2d 430 (Wash Ct App 1995); LaFave, 1 Search and Seizure § 1.4(e) at 119-20 & nn 55-59 (cited in note 13) (citing cases). None of the scholarly and judicial support for the defendants' position was noted in the Court's opinion.
160. See, for example, United States v Cannon, 29 F3d 472 (9th Cir 1994); United States v Smith, 799 F2d 704 (11th Cir 1986); State v Daniel, 665 So2d 1040 (Fla 1995); State v Haskell, 645 A2d 619 (Me 1994); Alejandre v State, 903 P2d 794 (Nev 1995); State v French, 663 NE2d 367 (Ohio Ct App 1995); State v Blumenthal, 895 P2d 430 (Wash Ct App 1995); LaFave, 1 Search and Seizure § 1.4(e) at 119-20 & nn 55-59 (cited in note 13) (citing cases). None of the scholarly and judicial support for the defendants' position was noted in the Court's opinion.
161. 116 S Ct at 1774.
162. Id at 1775.
163. Id.
164. Id.
165. For example, in a footnote to its per curiam affirmance of the conviction in Colorado v Bannister, 449 US 1 (1980), the Court had noted "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants." Id at 4 n 4. Justice Scalia quite properly treated the footnote as inconclusive: the most it demonstrated was "that the Court in Bannister found no need to inquire into the question now under discussion." Whren, 116 S Ct at With other cases, though, Justice Scalia was less careful. For example, he described United States v Robinson, 414 US 218 (1973), as having "held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search,'" and Scott v United States, 436 US 128 (1978), as having "said that '[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.'" 116 S Ct 1774. The actual import of those cases was less clear. After noting in a footnote in Robinson that the defendant claimed his arrest for a traffic offense was pretextual and that the officer denied it, the Court said only this: "We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that [his placement] in custody following that arrest was not a departure from established police department practice. We leave for another day questions which would arise on facts different from these." 414 US at 221 n 1. In Scott, the Court recounted the government's position that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional," endorsed this position for purposes of assessing compliance with the statutory requirement that wiretaps minimize the interception of conversations not the focus of the surveillance, and then opined more broadly that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action." 436 US at 138. Given the context of the broad language in Scott, even scholars unsympathetic to pretext claims have treated the case as questionable authority for their position. See note 71. Justice Scalia also cited United States v Villamonte-Marquez, 462 US 579 (1983), which upheld the warrantless boarding of a sailboat by customs officers to inspect documents; in a footnote, the Court rejected an argument that the action was unlawful because it was prompted by a tip that a vessel in the vicinity was carrying marijuana. See id at 584 n 3. The rejected claim, however, appeared to be statutory rather than constitutional, see id, and, as in Scott, was not truly an allegation of pretext: as the Court pointed out, among the "vital" purposes of shipboard document inspections was "the need to deter or apprehend smugglers" in order to "preven[t] the entry into this country of controlled substances" and other contraband. See id at 591, 593.
166. For example, in a footnote to its per curiam affirmance of the conviction in Colorado v Bannister, 449 US 1 (1980), the Court had noted "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants." Id at 4 n 4. Justice Scalia quite properly treated the footnote as inconclusive: the most it demonstrated was "that the Court in Bannister found no need to inquire into the question now under discussion." Whren, 116 S Ct at With other cases, though, Justice Scalia was less careful. For example, he described United States v Robinson, 414 US 218 (1973), as having "held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search,'" and Scott v United States, 436 US 128 (1978), as having "said that '[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.'" 116 S Ct 1774. The actual import of those cases was less clear. After noting in a footnote in Robinson that the defendant claimed his arrest for a traffic offense was pretextual and that the officer denied it, the Court said only this: "We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that [his placement] in custody following that arrest was not a departure from established police department practice. We leave for another day questions which would arise on facts different from these." 414 US at 221 n 1. In Scott, the Court recounted the government's position that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional," endorsed this position for purposes of assessing compliance with the statutory requirement that wiretaps minimize the interception of conversations not the focus of the surveillance, and then opined more broadly that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action." 436 US at 138. Given the context of the broad language in Scott, even scholars unsympathetic to pretext claims have treated the case as questionable authority for their position. See note 71. Justice Scalia also cited United States v Villamonte-Marquez, 462 US 579 (1983), which upheld the warrantless boarding of a sailboat by customs officers to inspect documents; in a footnote, the Court rejected an argument that the action was unlawful because it was prompted by a tip that a vessel in the vicinity was carrying marijuana. See id at 584 n 3. The rejected claim, however, appeared to be statutory rather than constitutional, see id, and, as in Scott, was not truly an allegation of pretext: as the Court pointed out, among the "vital" purposes of shipboard document inspections was "the need to deter or apprehend smugglers" in order to "preven[t] the entry into this country of controlled substances" and other contraband. See id at 591, 593.
167. For example, in a footnote to its per curiam affirmance of the conviction in Colorado v Bannister, 449 US 1 (1980), the Court had noted "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants." Id at 4 n 4. Justice Scalia quite properly treated the footnote as inconclusive: the most it demonstrated was "that the Court in Bannister found no need to inquire into the question now under discussion." Whren, 116 S Ct at With other cases, though, Justice Scalia was less careful. For example, he described United States v Robinson, 414 US 218 (1973), as having "held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search,'" and Scott v United States, 436 US 128 (1978), as having "said that '[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.'" 116 S Ct 1774. The actual import of those cases was less clear. After noting in a footnote in Robinson that the defendant claimed his arrest for a traffic offense was pretextual and that the officer denied it, the Court said only this: "We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that [his placement] in custody following that arrest was not a departure from established police department practice. We leave for another day questions which would arise on facts different from these." 414 US at 221 n 1. In Scott, the Court recounted the government's position that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional," endorsed this position for purposes of assessing compliance with the statutory requirement that wiretaps minimize the interception of conversations not the focus of the surveillance, and then opined more broadly that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action." 436 US at 138. Given the context of the broad language in Scott, even scholars unsympathetic to pretext claims have treated the case as questionable authority for their position. See note 71. Justice Scalia also cited United States v Villamonte-Marquez, 462 US 579 (1983), which upheld the warrantless boarding of a sailboat by customs officers to inspect documents; in a footnote, the Court rejected an argument that the action was unlawful because it was prompted by a tip that a vessel in the vicinity was carrying marijuana. See id at 584 n 3. The rejected claim, however, appeared to be statutory rather than constitutional, see id, and, as in Scott, was not truly an allegation of pretext: as the Court pointed out, among the "vital" purposes of shipboard document inspections was "the need to deter or apprehend smugglers" in order to "preven[t] the entry into this country of controlled substances" and other contraband. See id at 591, 593.
168. For example, in a footnote to its per curiam affirmance of the conviction in Colorado v Bannister, 449 US 1 (1980), the Court had noted "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants." Id at 4 n 4. Justice Scalia quite properly treated the footnote as inconclusive: the most it demonstrated was "that the Court in Bannister found no need to inquire into the question now under discussion." Whren, 116 S Ct at With other cases, though, Justice Scalia was less careful. For example, he described United States v Robinson, 414 US 218 (1973), as having "held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search,'" and Scott v United States, 436 US 128 (1978), as having "said that '[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.'" 116 S Ct 1774. The actual import of those cases was less clear. After noting in a footnote in Robinson that the defendant claimed his arrest for a traffic offense was pretextual and that the officer denied it, the Court said only this: "We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that [his placement] in custody following that arrest was not a departure from established police department practice. We leave for another day questions which would arise on facts different from these." 414 US at 221 n 1. In Scott, the Court recounted the government's position that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional," endorsed this position for purposes of assessing compliance with the statutory requirement that wiretaps minimize the interception of conversations not the focus of the surveillance, and then opined more broadly that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action." 436 US at 138. Given the context of the broad language in Scott, even scholars unsympathetic to pretext claims have treated the case as questionable authority for their position. See note 71. Justice Scalia also cited United States v Villamonte-Marquez, 462 US 579 (1983), which upheld the warrantless boarding of a sailboat by customs officers to inspect documents; in a footnote, the Court rejected an argument that the action was unlawful because it was prompted by a tip that a vessel in the vicinity was carrying marijuana. See id at 584 n 3. The rejected claim, however, appeared to be statutory rather than constitutional, see id, and, as in Scott, was not truly an allegation of pretext: as the Court pointed out, among the "vital" purposes of shipboard document inspections was "the need to deter or apprehend smugglers" in order to "preven[t] the entry into this country of controlled substances" and other contraband. See id at 591, 593.
169. For example, in a footnote to its per curiam affirmance of the conviction in Colorado v Bannister, 449 US 1 (1980), the Court had noted "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants." Id at 4 n 4. Justice Scalia quite properly treated the footnote as inconclusive: the most it demonstrated was "that the Court in Bannister found no need to inquire into the question now under discussion." Whren, 116 S Ct at With other cases, though, Justice Scalia was less careful. For example, he described United States v Robinson, 414 US 218 (1973), as having "held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search,'" and Scott v United States, 436 US 128 (1978), as having "said that '[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.'" 116 S Ct 1774. The actual import of those cases was less clear. After noting in a footnote in Robinson that the defendant claimed his arrest for a traffic offense was pretextual and that the officer denied it, the Court said only this: "We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that [his placement] in custody following that arrest was not a departure from established police department practice. We leave for another day questions which would arise on facts different from these." 414 US at 221 n 1. In Scott, the Court recounted the government's position that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional," endorsed this position for purposes of assessing compliance with the statutory requirement that wiretaps minimize the interception of conversations not the focus of the surveillance, and then opined more broadly that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action." 436 US at 138. Given the context of the broad language in Scott, even scholars unsympathetic to pretext claims have treated the case as questionable authority for their position. See note 71. Justice Scalia also cited United States v Villamonte-Marquez, 462 US 579 (1983), which upheld the warrantless boarding of a sailboat by customs officers to inspect documents; in a footnote, the Court rejected an argument that the action was unlawful because it was prompted by a tip that a vessel in the vicinity was carrying marijuana. See id at 584 n 3. The rejected claim, however, appeared to be statutory rather than constitutional, see id, and, as in Scott, was not truly an allegation of pretext: as the Court pointed out, among the "vital" purposes of shipboard document inspections was "the need to deter or apprehend smugglers" in order to "preven[t] the entry into this country of controlled substances" and other contraband. See id at 591, 593.
170. LaFave, 1 Search & Seizure § 1.4(e) at 120-21 (cited in note 13).
171. This is precisely the case made by Professor Haddad. See Haddad, 18 U Mich J L Ref at 653-73 (cited in note 71).
172. See Janet Koven Levit, Pretextual Traffic Stops: United States v Whren and the Death of Terry v Ohio, 28 Loyola U Chi L J 145, 178-80 (1996). Despite the gradual spread of the "reasonable officer" test in the lower courts (see note 73), the Tenth Circuit, which had adopted the test in 1988, see United States v Guzman, 864 F2d 1512 (10th Cir 1988), abandoned it as "unworkable" in 1995, see United States v Botero-Ospina. 71 F3d 783, 786 (10th Cir 1995). The court reached that conclusion largely because it found its own application of the rule "inconsistent" and because the rule had rarely caused the court to "reverse an order denying suppression." Id. As I discuss later (see notes 184-89 and accompanying text), the inconsistencies identified by the Tenth Circuit were the normal, transitional results of refining a new rule case by case; in any event, as the dissent pointed out, the obvious remedy for inconsistent application was to "clarify the standard rather than abandon it altogether." Id at 792 n 2 (Seymour dissenting). As for the fact that the test rarely resulted in appellate reversal of an order denying suppression, this showed the rule was "unworkable" only if law enforcement officers, prosecutors, and trial judges all were assumed incapable of following it, and if weak protection was thought worse than none.
173. See Janet Koven Levit, Pretextual Traffic Stops: United States v Whren and the Death of Terry v Ohio, 28 Loyola U Chi L J 145, 178-80 (1996). Despite the gradual spread of the "reasonable officer" test in the lower courts (see note 73), the Tenth Circuit, which had adopted the test in 1988, see United States v Guzman, 864 F2d 1512 (10th Cir 1988), abandoned it as "unworkable" in 1995, see United States v Botero-Ospina. 71 F3d 783, 786 (10th Cir 1995). The court reached that conclusion largely because it found its own application of the rule "inconsistent" and because the rule had rarely caused the court to "reverse an order denying suppression." Id. As I discuss later (see notes 184-89 and accompanying text), the inconsistencies identified by the Tenth Circuit were the normal, transitional results of refining a new rule case by case; in any event, as the dissent pointed out, the obvious remedy for inconsistent application was to "clarify the standard rather than abandon it altogether." Id at 792 n 2 (Seymour dissenting). As for the fact that the test rarely resulted in appellate reversal of an order denying suppression, this showed the rule was "unworkable" only if law enforcement officers, prosecutors, and trial judges all were assumed incapable of following it, and if weak protection was thought worse than none.
174. See Janet Koven Levit, Pretextual Traffic Stops: United States v Whren and the Death of Terry v Ohio, 28 Loyola U Chi L J 145, 178-80 (1996). Despite the gradual spread of the "reasonable officer" test in the lower courts (see note 73), the Tenth Circuit, which had adopted the test in 1988, see United States v Guzman, 864 F2d 1512 (10th Cir 1988), abandoned it as "unworkable" in 1995, see United States v Botero-Ospina. 71 F3d 783, 786 (10th Cir 1995). The court reached that conclusion largely because it found its own application of the rule "inconsistent" and because the rule had rarely caused the court to "reverse an order denying suppression." Id. As I discuss later (see notes 184-89 and accompanying text), the inconsistencies identified by the Tenth Circuit were the normal, transitional results of refining a new rule case by case; in any event, as the dissent pointed out, the obvious remedy for inconsistent application was to "clarify the standard rather than abandon it altogether." Id at 792 n 2 (Seymour dissenting). As for the fact that the test rarely resulted in appellate reversal of an order denying suppression, this showed the rule was "unworkable" only if law enforcement officers, prosecutors, and trial judges all were assumed incapable of following it, and if weak protection was thought worse than none.
175. See, for example, Amsterdam, 58 Minn L Rev at 423-28 (cited in note 70) (discussing the advantages of constraining police discretion through departmental rules).
176. See, for example, Florida v Jimeno, 500 US 248, 252 (1991) (authorizing police to open a closed container found while searching a car pursuant to consent if the "consent would reasonably be understood" to extend to the container); Illinois v Rodriguez, 497 US 177, 188-89 (1990) (holding that valid consent may be given by anyone a reasonable officer would believe exercised "common authority over the premises"); United States v Sharpe, 470 US 675 (1985) (holding that an investigative stop may last as long as is reasonable under all the circumstances); United States v Leon, 468 US 897, 919 & n 20 (1984) (holding that the exclusionary rule does not apply where an officer relies in "objective good faith" on a search warrant issued by a judge or magistrate); New York v Quarles, 467 US 649, 656 (1984) (holding that Miranda warnings need not be given before police questioning that, regardless of its actual motivation, could have been "reasonably prompted by a concern for the public safety"); Rhode Island v Innis, 446 US 291, 301-02 (1980) (holding that "the definition of interrogation" for purposes of triggering the Miranda rule "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); Terry v Ohio. 392 US 1, 21-22 (1968) (noting generally that application of Fourth Amendment requires asking whether "the facts available to the officer at the moment of the seizure or the search" would "'warrant a man of reasonable caution in the belief' that the action taken was appropriate") (quoting Carroll v United States, 267 US 132, 162 (1925)).
177. See, for example, Florida v Jimeno, 500 US 248, 252 (1991) (authorizing police to open a closed container found while searching a car pursuant to consent if the "consent would reasonably be understood" to extend to the container); Illinois v Rodriguez, 497 US 177, 188-89 (1990) (holding that valid consent may be given by anyone a reasonable officer would believe exercised "common authority over the premises"); United States v Sharpe, 470 US 675 (1985) (holding that an investigative stop may last as long as is reasonable under all the circumstances); United States v Leon, 468 US 897, 919 & n 20 (1984) (holding that the exclusionary rule does not apply where an officer relies in "objective good faith" on a search warrant issued by a judge or magistrate); New York v Quarles, 467 US 649, 656 (1984) (holding that Miranda warnings need not be given before police questioning that, regardless of its actual motivation, could have been "reasonably prompted by a concern for the public safety"); Rhode Island v Innis, 446 US 291, 301-02 (1980) (holding that "the definition of interrogation" for purposes of triggering the Miranda rule "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); Terry v Ohio. 392 US 1, 21-22 (1968) (noting generally that application of Fourth Amendment requires asking whether "the facts available to the officer at the moment of the seizure or the search" would "'warrant a man of reasonable caution in the belief' that the action taken was appropriate") (quoting Carroll v United States, 267 US 132, 162 (1925)).
178. See, for example, Florida v Jimeno, 500 US 248, 252 (1991) (authorizing police to open a closed container found while searching a car pursuant to consent if the "consent would reasonably be understood" to extend to the container); Illinois v Rodriguez, 497 US 177, 188-89 (1990) (holding that valid consent may be given by anyone a reasonable officer would believe exercised "common authority over the premises"); United States v Sharpe, 470 US 675 (1985) (holding that an investigative stop may last as long as is reasonable under all the circumstances); United States v Leon, 468 US 897, 919 & n 20 (1984) (holding that the exclusionary rule does not apply where an officer relies in "objective good faith" on a search warrant issued by a judge or magistrate); New York v Quarles, 467 US 649, 656 (1984) (holding that Miranda warnings need not be given before police questioning that, regardless of its actual motivation, could have been "reasonably prompted by a concern for the public safety"); Rhode Island v Innis, 446 US 291, 301-02 (1980) (holding that "the definition of interrogation" for purposes of triggering the Miranda rule "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); Terry v Ohio. 392 US 1, 21-22 (1968) (noting generally that application of Fourth Amendment requires asking whether "the facts available to the officer at the moment of the seizure or the search" would "'warrant a man of reasonable caution in the belief' that the action taken was appropriate") (quoting Carroll v United States, 267 US 132, 162 (1925)).
179. See, for example, Florida v Jimeno, 500 US 248, 252 (1991) (authorizing police to open a closed container found while searching a car pursuant to consent if the "consent would reasonably be understood" to extend to the container); Illinois v Rodriguez, 497 US 177, 188-89 (1990) (holding that valid consent may be given by anyone a reasonable officer would believe exercised "common authority over the premises"); United States v Sharpe, 470 US 675 (1985) (holding that an investigative stop may last as long as is reasonable under all the circumstances); United States v Leon, 468 US 897, 919 & n 20 (1984) (holding that the exclusionary rule does not apply where an officer relies in "objective good faith" on a search warrant issued by a judge or magistrate); New York v Quarles, 467 US 649, 656 (1984) (holding that Miranda warnings need not be given before police questioning that, regardless of its actual motivation, could have been "reasonably prompted by a concern for the public safety"); Rhode Island v Innis, 446 US 291, 301-02 (1980) (holding that "the definition of interrogation" for purposes of triggering the Miranda rule "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); Terry v Ohio. 392 US 1, 21-22 (1968) (noting generally that application of Fourth Amendment requires asking whether "the facts available to the officer at the moment of the seizure or the search" would "'warrant a man of reasonable caution in the belief' that the action taken was appropriate") (quoting Carroll v United States, 267 US 132, 162 (1925)).
180. See, for example, Florida v Jimeno, 500 US 248, 252 (1991) (authorizing police to open a closed container found while searching a car pursuant to consent if the "consent would reasonably be understood" to extend to the container); Illinois v Rodriguez, 497 US 177, 188-89 (1990) (holding that valid consent may be given by anyone a reasonable officer would believe exercised "common authority over the premises"); United States v Sharpe, 470 US 675 (1985) (holding that an investigative stop may last as long as is reasonable under all the circumstances); United States v Leon, 468 US 897, 919 & n 20 (1984) (holding that the exclusionary rule does not apply where an officer relies in "objective good faith" on a search warrant issued by a judge or magistrate); New York v Quarles, 467 US 649, 656 (1984) (holding that Miranda warnings need not be given before police questioning that, regardless of its actual motivation, could have been "reasonably prompted by a concern for the public safety"); Rhode Island v Innis, 446 US 291, 301-02 (1980) (holding that "the definition of interrogation" for purposes of triggering the Miranda rule "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); Terry v Ohio. 392 US 1, 21-22 (1968) (noting generally that application of Fourth Amendment requires asking whether "the facts available to the officer at the moment of the seizure or the search" would "'warrant a man of reasonable caution in the belief' that the action taken was appropriate") (quoting Carroll v United States, 267 US 132, 162 (1925)).
181. See, for example, Florida v Jimeno, 500 US 248, 252 (1991) (authorizing police to open a closed container found while searching a car pursuant to consent if the "consent would reasonably be understood" to extend to the container); Illinois v Rodriguez, 497 US 177, 188-89 (1990) (holding that valid consent may be given by anyone a reasonable officer would believe exercised "common authority over the premises"); United States v Sharpe, 470 US 675 (1985) (holding that an investigative stop may last as long as is reasonable under all the circumstances); United States v Leon, 468 US 897, 919 & n 20 (1984) (holding that the exclusionary rule does not apply where an officer relies in "objective good faith" on a search warrant issued by a judge or magistrate); New York v Quarles, 467 US 649, 656 (1984) (holding that Miranda warnings need not be given before police questioning that, regardless of its actual motivation, could have been "reasonably prompted by a concern for the public safety"); Rhode Island v Innis, 446 US 291, 301-02 (1980) (holding that "the definition of interrogation" for purposes of triggering the Miranda rule "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); Terry v Ohio. 392 US 1, 21-22 (1968) (noting generally that application of Fourth Amendment requires asking whether "the facts available to the officer at the moment of the seizure or the search" would "'warrant a man of reasonable caution in the belief' that the action taken was appropriate") (quoting Carroll v United States, 267 US 132, 162 (1925)).
182. See, for example, Florida v Jimeno, 500 US 248, 252 (1991) (authorizing police to open a closed container found while searching a car pursuant to consent if the "consent would reasonably be understood" to extend to the container); Illinois v Rodriguez, 497 US 177, 188-89 (1990) (holding that valid consent may be given by anyone a reasonable officer would believe exercised "common authority over the premises"); United States v Sharpe, 470 US 675 (1985) (holding that an investigative stop may last as long as is reasonable under all the circumstances); United States v Leon, 468 US 897, 919 & n 20 (1984) (holding that the exclusionary rule does not apply where an officer relies in "objective good faith" on a search warrant issued by a judge or magistrate); New York v Quarles, 467 US 649, 656 (1984) (holding that Miranda warnings need not be given before police questioning that, regardless of its actual motivation, could have been "reasonably prompted by a concern for the public safety"); Rhode Island v Innis, 446 US 291, 301-02 (1980) (holding that "the definition of interrogation" for purposes of triggering the Miranda rule "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); Terry v Ohio. 392 US 1, 21-22 (1968) (noting generally that application of Fourth Amendment requires asking whether "the facts available to the officer at the moment of the seizure or the search" would "'warrant a man of reasonable caution in the belief' that the action taken was appropriate") (quoting Carroll v United States, 267 US 132, 162 (1925)).
183. Whren, 116 S Ct at 1775.
184. The Court supported this point with "cf" citations to Gustafson v Florida, 414 US 260 (1973) and United States v Caceres, 440 US 741 (1979). Gustafson was a search-incident-to- arrest case in which the Court noted, in passing, that although local regulations neither required the defendant's arrest nor set conditions for his body search, these facts were not "determinative of the constitutional issue." 414 US at 265. Caceres "decline[d] to adopt any rigid rule" requiring the suppression of evidence obtained in violation of IRS regulations concerning electronic surveillance. 440 US at 755. Neither case suggested that the variable nature of local police regulations rendered them entirely irrelevant to the reasonableness of a search or seizure under the Fourth Amendment. On the other hand, Gustafton certainly did provide a particularly striking illustration of the Supreme Court's general lack of interest in constraining police discretion by compelling, or even encouraging, departmental rule- making. See Amsterdam, 58 Minn L Rev at 416 (cited in note 70).
185. The Court supported this point with "cf" citations to Gustafson v Florida, 414 US 260 (1973) and United States v Caceres, 440 US 741 (1979). Gustafson was a search-incident-to-arrest case in which the Court noted, in passing, that although local regulations neither required the defendant's arrest nor set conditions for his body search, these facts were not "determinative of the constitutional issue." 414 US at 265. Caceres "decline[d] to adopt any rigid rule" requiring the suppression of evidence obtained in violation of IRS regulations concerning electronic surveillance. 440 US at 755. Neither case suggested that the variable nature of local police regulations rendered them entirely irrelevant to the reasonableness of a search or seizure under the Fourth Amendment. On the other hand, Gustafton certainly did provide a particularly striking illustration of the Supreme Court's general lack of interest in constraining police discretion by compelling, or even encouraging, departmental rule-making. See Amsterdam, 58 Minn L Rev at 416 (cited in note 70).
186. The Court supported this point with "cf" citations to Gustafson v Florida, 414 US 260 (1973) and United States v Caceres, 440 US 741 (1979). Gustafson was a search-incident-to- arrest case in which the Court noted, in passing, that although local regulations neither required the defendant's arrest nor set conditions for his body search, these facts were not "determinative of the constitutional issue." 414 US at 265. Caceres "decline[d] to adopt any rigid rule" requiring the suppression of evidence obtained in violation of IRS regulations concerning electronic surveillance. 440 US at 755. Neither case suggested that the variable nature of local police regulations rendered them entirely irrelevant to the reasonableness of a search or seizure under the Fourth Amendment. On the other hand, Gustafton certainly did provide a particularly striking illustration of the Supreme Court's general lack of interest in constraining police discretion by compelling, or even encouraging, departmental rule- making. See Amsterdam, 58 Minn L Rev at 416 (cited in note 70).
187. Dworkin, 48 Ind L J at 329 (cited in note 60).
188. See Amsterdam, 58 Minn L Rev at 349 (cited in note 70). Even earlier, Professor LaFave had noted that "[n]o area of the law has more bedeviled the judiciary, from the Justices of the Supreme Court down to the magistrate." Wayne LaFave, Search and Seizure: "The Course of True Law . . . Has Not . . . Run Smooth," 1966 U Ill L F 255.
189. See Amsterdam, 58 Minn L Rev at 349 (cited in note 70). Even earlier, Professor LaFave had noted that "[n]o area of the law has more bedeviled the judiciary, from the Justices of the Supreme Court down to the magistrate." Wayne LaFave, Search and Seizure: "The Course of True Law . . . Has Not . . . Run Smooth," 1966 U Ill L F 255.
190. Silas J. Wasserstrom and Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Georgetown L J 19, 20 (1988).
191. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv L Rev 757, 758, 761 (1994).
192. Morgan Cloud, Pragmatism, Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L Rev 199, 204 (1993).
193. 116 S Ct at 1663.
194. Id at 1666 (Scalia dissenting).
195. 116 US at 1663.
196. Id.
197. 116 S Ct at 1775.
198. Levit, 28 Loyola U Chi L J at 180 (cited in note 81).
199. By way of illustration, the majority opinion in Ornelas noted that Milwaukee: is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan block any further eastward progress. And while the city's salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December. Milwaukee's average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Californian stopping Milwaukee in December is either there to transact business or to visit family or friends. Ornelas, 116 US at 1663.
200. See California v Greenwood, 486 US 35, 43 (1988) ("We have never intimated . . . that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs."). There is a sense of course, in which "the meaning of the Fourth Amendment" inevitably does depend on local laws - not local laws explicitly addressing police procedure, but local laws defining what conduct is criminal, and thereby determining, albeit indirectly what sets of circumstances constitute "probable cause" and "reasonable suspicion." See William J. Stuntz, Substance, Procedure, and the Civil-Criminal Line, 7 J Contemp L Issues 1 (1996). This point received no attention in Whren.
201. See California v Greenwood, 486 US 35, 43 (1988) ("We have never intimated . . . that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs."). There is a sense of course, in which "the meaning of the Fourth Amendment" inevitably does depend on local laws - not local laws explicitly addressing police procedure, but local laws defining what conduct is criminal, and thereby determining, albeit indirectly what sets of circumstances constitute "probable cause" and "reasonable suspicion." See William J. Stuntz, Substance, Procedure, and the Civil-Criminal Line, 7 J Contemp L Issues 1 (1996). This point received no attention in Whren.
202. Camara v Municipal Court, 387 US 523, 528 (1967). See also notes 69-70 and accompanying text.
203. See, for example, Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 80-96 (Louisiana State, 1969); LaFave, 1 Search and Seizure § 1.4(e) at 124-25 (cited in note 13); Amsterdam, 58 Minn L Rev at 409-39 (cited in note 70); LaFave, 1974 S Ct Rev at 161 (cited in note 60); Carl McGowan, Rule-Making and the Police, 70 Mich L Rev 659 (1972).
204. See, for example, Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 80- 96 (Louisiana State, 1969); LaFave, 1 Search and Seizure § 1.4(e) at 124-25 (cited in note 13); Amsterdam, 58 Minn L Rev at 409-39 (cited in note 70); LaFave, 1974 S Ct Rev at 161 (cited in note 60); Carl McGowan, Rule-Making and the Police, 70 Mich L Rev 659 (1972).
205. See, for example, Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 80- 96 (Louisiana State, 1969); LaFave, 1 Search and Seizure § 1.4(e) at 124-25 (cited in note 13); Amsterdam, 58 Minn L Rev at 409-39 (cited in note 70); LaFave, 1974 S Ct Rev at 161 (cited in note 60); Carl McGowan, Rule-Making and the Police, 70 Mich L Rev 659 (1972).
206. See, for example, Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 80- 96 (Louisiana State, 1969); LaFave, 1 Search and Seizure § 1.4(e) at 124-25 (cited in note 13); Amsterdam, 58 Minn L Rev at 409-39 (cited in note 70); LaFave, 1974 S Ct Rev at 161 (cited in note 60); Carl McGowan, Rule-Making and the Police, 70 Mich L Rev 659 (1972).
207. See, for example, Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 80- 96 (Louisiana State, 1969); LaFave, 1 Search and Seizure § 1.4(e) at 124-25 (cited in note 13); Amsterdam, 58 Minn L Rev at 409-39 (cited in note 70); LaFave, 1974 S Ct Rev at 161 (cited in note 60); Carl McGowan, Rule-Making and the Police, 70 Mich L Rev 659 (1972).
208. See note 85.
209. See, for example, Illinois v Lafayette, 462 US 640, 647 (1983) (upholding searches of arrested suspect pursuant to "standardized inventory procedures" before incarceration); South Dakota v Opperman, 428 US 364, 372 (1976) (approving inventory searches of lawfully seized automobiles "pursuant to standard police procedures").
210. See, for example, Illinois v Lafayette, 462 US 640, 647 (1983) (upholding searches of arrested suspect pursuant to "standardized inventory procedures" before incarceration); South Dakota v Opperman, 428 US 364, 372 (1976) (approving inventory searches of lawfully seized automobiles "pursuant to standard police procedures").
211. 104 116 S Ct 2035 (1996).
212. Id at 2047. Although all nine justices agreed on the proper standard of review, the Court split on the proper application of that standard to the facts before it. Steven Clymer pointed out to me the tension between Koon and Ornelas.
213. Id (quoting Cooter & Gell v Hartmarx Corp., 496 US 384, 404-05 (1990) (in turn quoting Pierce v Underwood, 487 US 552, 561-62 (1988))).
214. Id (quoting Cooter & Gell v Hartmarx Corp., 496 US 384, 404-05 (1990) (in turn quoting Pierce v Underwood, 487 US 552, 561-62 (1988))).
215. In other contexts, the Supreme Court sometimes has reasoned that a more probing standard of review should be applied to the application of rules that protect important constitutional values. See, for example, Bose Corp. v Consumers Union, 466 US 485, 501-02 (1984) This might seem a promising basis for distinguishing Ornelas, which involved constitutional determinations, from Koon, which did not. But the opinions in Ornelas and Koon paid no attention to this factor, and the "due weight" that Ornelas instructed reviewing courts to give to the inferences of trial judges and law enforcement officers is difficult to reconcile with the exercise of "independent judgment" required by decisions like Bose Corp.
216. Robinette, 117 S Ct at 422 (Ginsburg concurring).
217. Id at 421.
218. 653 NE2d at 698.
219. 117 S Ct at 422 (Ginsburg concurring).
220. Id at 425 (Stevens dissenting).
221. Id at 421.
222. See id (citing Florida v Bostick, 501 US 429 (1991) (rejecting flat prohibition of suspicionless questioning of passengers on board intercity buses); Michigan v Chestnut, 486 US 567 (1988) (rejecting "bright-line" rule that any investigatory pursuit amounts to a seizure); Florida v Royer, 460 US 491 (1983) (declining to rule that "drug courier profile" alone cannot provide basis for investigatory stop); Schneckloth v Bustamonte, 412 US 218 (1973) (rejecting rule that valid consent to search can be given only by a suspect who knows that he or she has the right to refuse consent). The Chief Justice could also have cited, for example, United States v Sharpe, 470 US 675 (1985) (refusing to create per se rule regarding how long an investigative detention justified only by reasonable suspicion may last). Were Robinette decided today, he could add Richards v Wisconsin, 117 S Ct 1416 (1997). See note 148.
223. See id (citing Florida v Bostick, 501 US 429 (1991) (rejecting flat prohibition of suspicionless questioning of passengers on board intercity buses); Michigan v Chestnut, 486 US 567 (1988) (rejecting "bright-line" rule that any investigatory pursuit amounts to a seizure); Florida v Royer, 460 US 491 (1983) (declining to rule that "drug courier profile" alone cannot provide basis for investigatory stop); Schneckloth v Bustamonte, 412 US 218 (1973) (rejecting rule that valid consent to search can be given only by a suspect who knows that he or she has the right to refuse consent). The Chief Justice could also have cited, for example, United States v Sharpe, 470 US 675 (1985) (refusing to create per se rule regarding how long an investigative detention justified only by reasonable suspicion may last). Were Robinette decided today, he could add Richards v Wisconsin, 117 S Ct 1416 (1997). See note 148.
224. See id (citing Florida v Bostick, 501 US 429 (1991) (rejecting flat prohibition of suspicionless questioning of passengers on board intercity buses); Michigan v Chestnut, 486 US 567 (1988) (rejecting "bright-line" rule that any investigatory pursuit amounts to a seizure); Florida v Royer, 460 US 491 (1983) (declining to rule that "drug courier profile" alone cannot provide basis for investigatory stop); Schneckloth v Bustamonte, 412 US 218 (1973) (rejecting rule that valid consent to search can be given only by a suspect who knows that he or she has the right to refuse consent). The Chief Justice could also have cited, for example, United States v Sharpe, 470 US 675 (1985) (refusing to create per se rule regarding how long an investigative detention justified only by reasonable suspicion may last). Were Robinette decided today, he could add Richards v Wisconsin, 117 S Ct 1416 (1997). See note 148.
225. See id (citing Florida v Bostick, 501 US 429 (1991) (rejecting flat prohibition of suspicionless questioning of passengers on board intercity buses); Michigan v Chestnut, 486 US 567 (1988) (rejecting "bright-line" rule that any investigatory pursuit amounts to a seizure); Florida v Royer, 460 US 491 (1983) (declining to rule that "drug courier profile" alone cannot provide basis for investigatory stop); Schneckloth v Bustamonte, 412 US 218 (1973) (rejecting rule that valid consent to search can be given only by a suspect who knows that he or she has the right to refuse consent). The Chief Justice could also have cited, for example, United States v Sharpe, 470 US 675 (1985) (refusing to create per se rule regarding how long an investigative detention justified only by reasonable suspicion may last). Were Robinette decided today, he could add Richards v Wisconsin, 117 S Ct 1416 (1997). See note 148.
226. See id (citing Florida v Bostick, 501 US 429 (1991) (rejecting flat prohibition of suspicionless questioning of passengers on board intercity buses); Michigan v Chestnut, 486 US 567 (1988) (rejecting "bright-line" rule that any investigatory pursuit amounts to a seizure); Florida v Royer, 460 US 491 (1983) (declining to rule that "drug courier profile" alone cannot provide basis for investigatory stop); Schneckloth v Bustamonte, 412 US 218 (1973) (rejecting rule that valid consent to search can be given only by a suspect who knows that he or she has the right to refuse consent). The Chief Justice could also have cited, for example, United States v Sharpe, 470 US 675 (1985) (refusing to create per se rule regarding how long an investigative detention justified only by reasonable suspicion may last). Were Robinette decided today, he could add Richards v Wisconsin, 117 S Ct 1416 (1997). See note 148.
227. See id (citing Florida v Bostick, 501 US 429 (1991) (rejecting flat prohibition of suspicionless questioning of passengers on board intercity buses); Michigan v Chestnut, 486 US 567 (1988) (rejecting "bright-line" rule that any investigatory pursuit amounts to a seizure); Florida v Royer, 460 US 491 (1983) (declining to rule that "drug courier profile" alone cannot provide basis for investigatory stop); Schneckloth v Bustamonte, 412 US 218 (1973) (rejecting rule that valid consent to search can be given only by a suspect who knows that he or she has the right to refuse consent). The Chief Justice could also have cited, for example, United States v Sharpe, 470 US 675 (1985) (refusing to create per se rule regarding how long an investigative detention justified only by reasonable suspicion may last). Were Robinette decided today, he could add Richards v Wisconsin, 117 S Ct 1416 (1997). See note 148.
228. Payton v New York, 445 US 573 (1980).
229. See, for example, Pennsylvania v Labron, 116 S Ct 2485 (1996): California v Acevedo 500 US 565 (1991).
230. See, for example, Pennsylvania v Labron, 116 S Ct 2485 (1996): California v Acevedo 500 US 565 (1991).
231. See United States v Watson, 423 US 411 (1976).
232. See United States v Robinson, 414 US 218 (1973).
233. See New York v Belton, 453 US 454 (1981).
234. 117 S Ct at 421.
235. 434 US 106 (1977).
236. Id at 111 n 6.
237. 117 S Ct at 885 n 1. There was no sign in Maryland v Wilson that the Court was simply bowing to precedent, no sign that the Court felt bound by or in any way disagreed with its earlier decision in Mimms.
238. See note 44.
239. Florida v Bostick, 501 US 429, 439 (1991).
240. Actually, the decision went further than that, declaring that "as a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." 116 S Ct at 1772. See also note 86.
241. 117 S Ct at 421.
242. Id (quoting Florida v Royer, 460 US 491, 506 (1983)).
243. 117 S Ct at 421.
244. 117 S Ct at 885. See also id at 886.
245. 117 S Ct at 885. See also id at 886.
246. The practical concerns articulated in Whren had to do with justiciability, not policing. See Whren, 116 S Ct at 1775-77. See also Wilson. 117 S Ct at 890 (Kennedy dissenting) (justifying Whren on the ground that "[w]e could discern no other, workable rule").
247. The practical concerns articulated in Whren had to do with justiciability, not policing. See Whren, 116 S Ct at 1775-77. See also Wilson. 117 S Ct at 890 (Kennedy dissenting) (justifying Whren on the ground that "[w]e could discern no other, workable rule").
248. Salken, 62 Temple L Rev at 221 (cited in note 69). The trial judge in Maryland v Wilson, for example, noted that in his opinion "no one goes 55 m.p.h" on the stretch of Interstate 95 where the car in that case was pulled over for traveling 64 m.p.h. in a 55 m.p.h. zone. State v Wilson, No. 94 CR 01201 (Md Cir Ct Jan 10, 1995), aff'd, 664 A2d 1 (Md Ct Spec App 1995), rev'd, 117 S Ct 882 (1997). Similarly, statisticians observing cars on the New Jersey Turnpike in 1993 concluded that "virtually everyone on the Turnpike was driving faster than the speed limit." Joseph B. Kadane and Norma Terrin, Missing Data in the Forensic Context 3 (on file with author).
249. Salken, 62 Temple L Rev at 221 (cited in note 69). The trial judge in Maryland v Wilson, for example, noted that in his opinion "no one goes 55 m.p.h" on the stretch of Interstate 95 where the car in that case was pulled over for traveling 64 m.p.h. in a 55 m.p.h. zone. State v Wilson, No. 94 CR 01201 (Md Cir Ct Jan 10, 1995), aff'd, 664 A2d 1 (Md Ct Spec App 1995), rev'd, 117 S Ct 882 (1997). Similarly, statisticians observing cars on the New Jersey Turnpike in 1993 concluded that "virtually everyone on the Turnpike was driving faster than the speed limit." Joseph B. Kadane and Norma Terrin, Missing Data in the Forensic Context 3 (on file with author).
250. Justice Kennedy drew attention to the combined effects of Whren and Wilson in his dissent from the latter ruling: "The practical effect of our ruling in Whren, of course, is to allow the police to stop vehicles in almost countless circumstances. When Whren is coupled with today's holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police." Wilson, 117 S Ct at 890 (Kennedy dissenting).
251. Earl M. Sweeney, Traffic Enforcement: New Uses for an Old Tool, Police Chief 45 (July 1996). Sweeney directs the New Hampshire Police Standards and Training Council. His article stressed that "an alert police officer who 'looks beyond the traffic ticket' and uses the motor vehicle stop to 'sniff out' possible criminal behavior may be our most effective tool for interdicting criminals," and pointed out that "[m]any cities that are plagued by gang activity, illegal guns, open-air drug markets and drive-by shootings have discovered that saturating an area with traffic patrol shuts down these illegal operations." Id.
252. Garrett Morford, J. Michael Sheehan, Jr., and Jack Stuster, Traffic Enforcement's Role in the War on Crime, Police Chief 48 (July 1996).
253. Highway Safety Comm., Int'l Ass'n of Chiefs of Police, Top 10 Lies in Traffic Enforcement, Police Chief 30 (July 1997).
254. 116 S Ct at 1773.
255. See, for example, Joan Biskupic, Greater 4th Amendment Scrutiny Ordered, Wash Post A12 (May 29, 1996) (noting the case "enhances the ability of defendants to challenge a conviction before an appeals court"); David G. Savage, Supreme Court Orders Review of Police Search, LA Times A16 (May 29, 1996) (describing the decision as "a rare victory for convicted drug dealers and other criminals"). But see Linda Greenhouse, Supreme Court Roundup, NY Times A14 (May 29, 1996) (pointing out that "the standard of appellate review is an issue that can cut in either direction").
256. See, for example, Joan Biskupic, Greater 4th Amendment Scrutiny Ordered, Wash Post A12 (May 29, 1996) (noting the case "enhances the ability of defendants to challenge a conviction before an appeals court"); David G. Savage, Supreme Court Orders Review of Police Search, LA Times A16 (May 29, 1996) (describing the decision as "a rare victory for convicted drug dealers and other criminals"). But see Linda Greenhouse, Supreme Court Roundup, NY Times A14 (May 29, 1996) (pointing out that "the standard of appellate review is an issue that can cut in either direction").
257. See, for example, Joan Biskupic, Greater 4th Amendment Scrutiny Ordered, Wash Post A12 (May 29, 1996) (noting the case "enhances the ability of defendants to challenge a conviction before an appeals court"); David G. Savage, Supreme Court Orders Review of Police Search, LA Times A16 (May 29, 1996) (describing the decision as "a rare victory for convicted drug dealers and other criminals"). But see Linda Greenhouse, Supreme Court Roundup, NY Times A14 (May 29, 1996) (pointing out that "the standard of appellate review is an issue that can cut in either direction").
258. Because the United States agreed with the petitioners that determinations of probable cause and reasonable suspicion should be reviewed de novo, the Supreme Court was forced to appoint an amicus curiae to defend the judgment below. See Ornelas, 116 S Ct at 1661 n 4.
259. United States v Ornelas, 93 F3d 1450, 1996 WL 508569 (7th Cir 1996).
260. See, for example, Paul Brest, Who Decides? 88 S Cal L Rev 661 (1985) (discussing the "demography of the judiciary"); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va L Rev 881, 912-13 (1991) (suggesting that "the character of the claimant in an exclusionary rule proceeding tends to exacerbate the bias that is naturally present in all after-the-fact proceedings").
261. See, for example, Paul Brest, Who Decides? 88 S Cal L Rev 661 (1985) (discussing the "demography of the judiciary"); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va L Rev 881, 912-13 (1991) (suggesting that "the character of the claimant in an exclusionary rule proceeding tends to exacerbate the bias that is naturally present in all after-the-fact proceedings").
262. See United States v Bayless, 913 F Supp 232, vacated, 921 F Supp 211 (SDNY 1996);
263. Don Van Natta, Jr., Judge Finds Wit Tested by Criticism, NY Times B1 (Feb 7, 1996). The police claimed their suspicions had been aroused when, among other things, four men threw a duffel bag in the trunk of the car and then, after noticing police officers watching them, ran away. 913 F Supp at 234-35. Judge Baer called the police testimony "at best suspect," id at 239, and commented, in the most controversial part of his ruling, that given the well-publicized police corruption in the neighborhood, "had the men not run when the cops began to stare at them, it would have been unusual," id at 242.
264. See United States v Bayless, 921 F Supp 211 (SDNY 1996). Judge Baer based his second ruling on new evidence bolstering the credibility of the police officers involved in the stop and undermining the credibility of the defendant. Id at 213-16. He also lamented that "the hyperbole (dicta) in my initial decision not only obscured the true focus of my analysis, but regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City." Id at 217. The following month Judge Baer denied a defense motion for his recusal, but recused himself anyway to avoid "several unnecessary and otherwise avoidable problems and attendant delay."
265. See United States v Bayless, 926 F Supp 405 (SDNY 1996).
266. See John M. Goshko, Accusations of Coddling Criminals Aimed at Two Judges in New York, Wash Post A3 (Mar 1, 1996). Nor was the Senate silent. See, for example, 142 Cong Rec S539 (daily ed Jan 26, 1996) (remarks of Sen. Dole); id at S1162 (daily ed Feb 9, 1996) (remarks of Sen. Hatch); Van Natta, NY Times at B1 (reporting that Senator Moynihan, who had recommended Baer's appointment to the federal bench, now expressed regret for the endorsement).
267. See Alison Mitchell, Clinton Pressing Judge to Relent, Wash Post A1 (Mar 22, 1996).
268. Ornelas is also consistent with Carol Steiker's recent argument that the Burger and Rehnquist Courts have retreated from the Warren Court's approach to constitutional criminal procedure less by explicitly loosening the restrictions on police conduct than by limiting the extent to which violations of those restrictions result in the exclusion of evidence or reversals of convictions. See Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466 (1996). Whren, Robinette, and Wilson fit Professor Steiker's thesis less well, but then she acknowledges that "the Court's Fourth Amendment police-conduct norms . . . have changed much more over the past twenty-five years than have its Fifth or Sixth Amendment norms." Id at 2503.
269. Of course, the defendants in Ornelas, Whren, and Robinette were not just suspects: they had been convicted of narcotics offenses. Jerry Wilson had not been convicted, but that was only because the trial court suppressed the crack cocaine he dropped when stepping out of the car. The fact that the defendants in these cases were for all practical purposes proven criminals obviously undercut the visceral appeal of their Fourth Amendment claims; this is a familiar consequence of enforcing the Fourth Amendment through the exclusion of evidence in criminal prosecutions. See, for example, Amar, 107 Harv L Rev at 796, 799 (cited in note 90); Stuntz, 77 Va L Rev at 912-13 (cited in note 141); John Kaplan, The Limits of the Exclusionary Rule, 26 Stan L Rev 1027, 1036-39 (1974). But the exclusionary rule was not the entire explanation for the Court's pronounced sympathy for law enforcement in the traffic stop cases. The opinions in those cases make clear that the justices did not simply have more sympathy for law enforcement than for the particular defendants before the Court; they had more sympathy for law enforcement than for criminal suspects in general.
270. Of course, the defendants in Ornelas, Whren, and Robinette were not just suspects: they had been convicted of narcotics offenses. Jerry Wilson had not been convicted, but that was only because the trial court suppressed the crack cocaine he dropped when stepping out of the car. The fact that the defendants in these cases were for all practical purposes proven criminals obviously undercut the visceral appeal of their Fourth Amendment claims; this is a familiar consequence of enforcing the Fourth Amendment through the exclusion of evidence in criminal prosecutions. See, for example, Amar, 107 Harv L Rev at 796, 799 (cited in note 90); Stuntz, 77 Va L Rev at 912-13 (cited in note 141); John Kaplan, The Limits of the Exclusionary Rule, 26 Stan L Rev 1027, 1036-39 (1974). But the exclusionary rule was not the entire explanation for the Court's pronounced sympathy for law enforcement in the traffic stop cases. The opinions in those cases make clear that the justices did not simply have more sympathy for law enforcement than for the particular defendants before the Court; they had more sympathy for law enforcement than for criminal suspects in general.
271. Of course, the defendants in Ornelas, Whren, and Robinette were not just suspects: they had been convicted of narcotics offenses. Jerry Wilson had not been convicted, but that was only because the trial court suppressed the crack cocaine he dropped when stepping out of the car. The fact that the defendants in these cases were for all practical purposes proven criminals obviously undercut the visceral appeal of their Fourth Amendment claims; this is a familiar consequence of enforcing the Fourth Amendment through the exclusion of evidence in criminal prosecutions. See, for example, Amar, 107 Harv L Rev at 796, 799 (cited in note 90); Stuntz, 77 Va L Rev at 912-13 (cited in note 141); John Kaplan, The Limits of the Exclusionary Rule, 26 Stan L Rev 1027, 1036-39 (1974). But the exclusionary rule was not the entire explanation for the Court's pronounced sympathy for law enforcement in the traffic stop cases. The opinions in those cases make clear that the justices did not simply have more sympathy for law enforcement than for the particular defendants before the Court; they had more sympathy for law enforcement than for criminal suspects in general.
272. In addition to Whren, Robinette, and Wilson, see Richards v Wisconsin, 117 S Ct 1416 (1997); Pennsylvania v Labron, 116 S Ct 2485 (1996); Vernonia School District 47J v Acton, 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). Richards rejected a "blanket" exception in felony drug cases to the "knock and announce" principle set forth in Wilson v Arkansas, 115 S Ct 1914 (1995), but held that under the circumstances before the Court the failure to knock and announce was reasonable. Labron reaffirmed the per se rule that automobiles may be searched without a warrant whenever there is probable cause to believe that contraband, criminal proceeds, or evidence will be found. For brief descriptions of Acton and Evans, see note 63.
273. In addition to Whren, Robinette, and Wilson, see Richards v Wisconsin, 117 S Ct 1416 (1997); Pennsylvania v Labron, 116 S Ct 2485 (1996); Vernonia School District 47J v Acton, 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). Richards rejected a "blanket" exception in felony drug cases to the "knock and announce" principle set forth in Wilson v Arkansas, 115 S Ct 1914 (1995), but held that under the circumstances before the Court the failure to knock and announce was reasonable. Labron reaffirmed the per se rule that automobiles may be searched without a warrant whenever there is probable cause to believe that contraband, criminal proceeds, or evidence will be found. For brief descriptions of Acton and Evans, see note 63.
274. In addition to Whren, Robinette, and Wilson, see Richards v Wisconsin, 117 S Ct 1416 (1997); Pennsylvania v Labron, 116 S Ct 2485 (1996); Vernonia School District 47J v Acton, 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). Richards rejected a "blanket" exception in felony drug cases to the "knock and announce" principle set forth in Wilson v Arkansas, 115 S Ct 1914 (1995), but held that under the circumstances before the Court the failure to knock and announce was reasonable. Labron reaffirmed the per se rule that automobiles may be searched without a warrant whenever there is probable cause to believe that contraband, criminal proceeds, or evidence will be found. For brief descriptions of Acton and Evans, see note 63.
275. In addition to Whren, Robinette, and Wilson, see Richards v Wisconsin, 117 S Ct 1416 (1997); Pennsylvania v Labron, 116 S Ct 2485 (1996); Vernonia School District 47J v Acton, 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). Richards rejected a "blanket" exception in felony drug cases to the "knock and announce" principle set forth in Wilson v Arkansas, 115 S Ct 1914 (1995), but held that under the circumstances before the Court the failure to knock and announce was reasonable. Labron reaffirmed the per se rule that automobiles may be searched without a warrant whenever there is probable cause to believe that contraband, criminal proceeds, or evidence will be found. For brief descriptions of Acton and Evans, see note 63.
276. In addition to Whren, Robinette, and Wilson, see Richards v Wisconsin, 117 S Ct 1416 (1997); Pennsylvania v Labron, 116 S Ct 2485 (1996); Vernonia School District 47J v Acton, 115 S Ct 2386 (1995); Arizona v Evans, 115 S Ct 1185 (1995). Richards rejected a "blanket" exception in felony drug cases to the "knock and announce" principle set forth in Wilson v Arkansas, 115 S Ct 1914 (1995), but held that under the circumstances before the Court the failure to knock and announce was reasonable. Labron reaffirmed the per se rule that automobiles may be searched without a warrant whenever there is probable cause to believe that contraband, criminal proceeds, or evidence will be found. For brief descriptions of Acton and Evans, see note 63.
277. 117 S Ct 1295 (1997).
278. 115 S Ct 1914(1995).
279. The state offices covered by the law were "the Governor, Lieutenant Governor, Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Agriculture, Commissioner of Labor, Justices of the Supreme Court, Judges of the Court of Appeals, judges of the superior courts, district attorneys, members of the General Assembly, and members of the Public Service Commission." Ga Code Ann § 21-2-140(a)(4) (1987), quoted in Chandler, 117 S Ct at 1299.
280. Wilson v Arkansas, 878 SW2d 755, 758 (1994), rev'd, 115 S Ct 1914 (1995).
281. 115 US at 1915.
282. Id at 1918 (emphasis added).
283. Id at 1918-19 (emphasis added).
284. Id.
285. Id at 1919.
286. Id at 1915.
287. See id at 1919.
288. Id.
289. In fact, the justification for failing to knock was never even litigated on remand, because the one-year sentence Wilson received on the count of conviction vacated by the Supreme Court ran concurrent with longer sentences imposed on counts unaffected by the legality of the search. Telephone Interview with John Wesley Hall, counsel for Sharlene Wilson (Sept 12, 1996); Telephone Interview with Kent Holt, Assistant Attorney General, State of Arkansas (Apr 18, 1997).
290. Official Transcript, 1995 WL 243487, at *43 (argument of Michael R. Dreeben, Assistant to the Solicitor General). The United States suggested that a remand was unnecessary because the evidence before the trial court clearly established that dispensing with knock and announce was reasonable in this case. See id at *44.
291. It could of course assist criminal defendants and constitutional tort plaintiffs in jurisdictions that previously thought that even an unreasonable failure to knock before entering could not violate the Fourth Amendment, but Arkansas itself may not have been such a jurisdiction. The Arkansas Supreme Court described Wilson's argument as asserting, based solely on Miller v United States, 357 US 301 (1958), "that the Fourth Amendment requires officers to knock and announce prior to entering the residence." The court noted, correctly, that Miller was a statutory case, involving 18 USC § 3109, which specifies when federal officers are allowed to break open doors, but has no application to state officers. The court further opined that there was "no authority for Ms. Wilson's theory that the knock and announce principle is required by the Fourth Amendment," but it did not explain what it meant by "the knock and announce principle." Perhaps the Arkansas court meant to say what Justice Thomas took it to say: that a failure to knock, no matter how unreasonable, could never render a search unconstitutional. Just as likely, however, the court meant simply to reject a flat rule requiring prior announcement in all circumstances. Compare Dodson v State, 626 SW2d 624, 628 (Ark App) (holding that "[a]lthough the mere failure of police to announce their authority and purpose does not per se violate the constitution, it may influence whether the subsequent entry to arrest or search is constitutionally reasonable"); United States v Nolan, 718 F2d 589, 601-02 (3d Cir 1983) (suggesting that the Fourth Amendment does not impose "a knock and announce requirement with precise and narrowly defined exceptions," but that "a failure by police to knock and announce could, depending on the circumstances, violate the more general Fourth Amendment reasonableness requirement").
292. It could of course assist criminal defendants and constitutional tort plaintiffs in jurisdictions that previously thought that even an unreasonable failure to knock before entering could not violate the Fourth Amendment, but Arkansas itself may not have been such a jurisdiction. The Arkansas Supreme Court described Wilson's argument as asserting, based solely on Miller v United States, 357 US 301 (1958), "that the Fourth Amendment requires officers to knock and announce prior to entering the residence." The court noted, correctly, that Miller was a statutory case, involving 18 USC § 3109, which specifies when federal officers are allowed to break open doors, but has no application to state officers. The court further opined that there was "no authority for Ms. Wilson's theory that the knock and announce principle is required by the Fourth Amendment," but it did not explain what it meant by "the knock and announce principle." Perhaps the Arkansas court meant to say what Justice Thomas took it to say: that a failure to knock, no matter how unreasonable, could never render a search unconstitutional. Just as likely, however, the court meant simply to reject a flat rule requiring prior announcement in all circumstances. Compare Dodson v State, 626 SW2d 624, 628 (Ark App) (holding that "[a]lthough the mere failure of police to announce their authority and purpose does not per se violate the constitution, it may influence whether the subsequent entry to arrest or search is constitutionally reasonable"); United States v Nolan, 718 F2d 589, 601-02 (3d Cir 1983) (suggesting that the Fourth Amendment does not impose "a knock and announce requirement with precise and narrowly defined exceptions," but that "a failure by police to knock and announce could, depending on the circumstances, violate the more general Fourth Amendment reasonableness requirement").
293. It could of course assist criminal defendants and constitutional tort plaintiffs in jurisdictions that previously thought that even an unreasonable failure to knock before entering could not violate the Fourth Amendment, but Arkansas itself may not have been such a jurisdiction. The Arkansas Supreme Court described Wilson's argument as asserting, based solely on Miller v United States, 357 US 301 (1958), "that the Fourth Amendment requires officers to knock and announce prior to entering the residence." The court noted, correctly, that Miller was a statutory case, involving 18 USC § 3109, which specifies when federal officers are allowed to break open doors, but has no application to state officers. The court further opined that there was "no authority for Ms. Wilson's theory that the knock and announce principle is required by the Fourth Amendment," but it did not explain what it meant by "the knock and announce principle." Perhaps the Arkansas court meant to say what Justice Thomas took it to say: that a failure to knock, no matter how unreasonable, could never render a search unconstitutional. Just as likely, however, the court meant simply to reject a flat rule requiring prior announcement in all circumstances. Compare Dodson v State, 626 SW2d 624, 628 (Ark App) (holding that "[a]lthough the mere failure of police to announce their authority and purpose does not per se violate the constitution, it may influence whether the subsequent entry to arrest or search is constitutionally reasonable"); United States v Nolan, 718 F2d 589, 601-02 (3d Cir 1983) (suggesting that the Fourth Amendment does not impose "a knock and announce requirement with precise and narrowly defined exceptions," but that "a failure by police to knock and announce could, depending on the circumstances, violate the more general Fourth Amendment reasonableness requirement").
294. 115 S Ct at 1916.
295. See id at 1916-19.
296. Id at 1918.
297. See, for example, Minnesota v Dickerson, 508 US 366, 380 (1993) (suggesting that the Fourth Amendment aims "to preserve that degree of respect for privacy of persons and the inviolability of their property that existed when the provision was adopted").
298. Indeed, as Peter Arenella has observed, the Supreme Court has seldom turned to the "Framers' intent" to resolve any of the central questions of Fourth Amendment jurisprudence: "Instead, the Court's fundamental interpretative strategy is to identify and balance the competing values implicated by this restraint on governmental power." Peter Arenella, Fourth Amendment, in Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds, 2 Encyclopedia of the American Constitution 223 (Prentice-Hall, 1987). See also, for example, Tennessee v Garner, 471 US 1 (1985) (concluding that "sweeping change in the legal and technological context" renders the common law rule allowing deadly force against all fleeing felons no longer consistent with the Fourth Amendment); Katz v United States, 389 US 347, 352 (1967) (reasoning that the Fourth Amendment must be read in light of "the vital role that the public telephone has come to play in private communication"); Amsterdam, 58 Minn L Rev at 399 (cited in note 70) (calling implausible the supposition that the framers of the Fourth Amendment "meant to preserve to their posterity by guarantees of liberty written with the broadest latitude nothing more than hedges against the recurrence of particular forms of evil suffered at the hands of a monarch beyond the seas"). Even those who have urged paying more attention to the intent underlying the Fourth Amendment generally have not suggested that "reasonableness" should depend only on those factors thought important in the eighteenth century. See, for example, Amar, 107 Harv L Rev at 800-11, 818 (cited in note 90) (arguing that the history and text of the Fourth Amendment call for a "broad and powerful" inquiry into the reasonableness of searches and seizures, including consideration of issues of race, class, and gender). In the terms made familiar by Ronald Dworkin, the Fourth Amendment has commonly been understood to embody a "concept," not a "conception." Ronald Dworkin, Taking Rights Seriously 134-37 (Harvard, 1977). Compare Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv L Rev 1, 63 (1955) (arguing that "an awareness on the part of [the] framers [of the Fourteenth Amendment] that it was a constitution they were writing . . . led to a choice of language open to growth").
299. Indeed, as Peter Arenella has observed, the Supreme Court has seldom turned to the "Framers' intent" to resolve any of the central questions of Fourth Amendment jurisprudence: "Instead, the Court's fundamental interpretative strategy is to identify and balance the competing values implicated by this restraint on governmental power." Peter Arenella, Fourth Amendment, in Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds, 2 Encyclopedia of the American Constitution 223 (Prentice-Hall, 1987). See also, for example, Tennessee v Garner, 471 US 1 (1985) (concluding that "sweeping change in the legal and technological context" renders the common law rule allowing deadly force against all fleeing felons no longer consistent with the Fourth Amendment); Katz v United States, 389 US 347, 352 (1967) (reasoning that the Fourth Amendment must be read in light of "the vital role that the public telephone has come to play in private communication"); Amsterdam, 58 Minn L Rev at 399 (cited in note 70) (calling implausible the supposition that the framers of the Fourth Amendment "meant to preserve to their posterity by guarantees of liberty written with the broadest latitude nothing more than hedges against the recurrence of particular forms of evil suffered at the hands of a monarch beyond the seas"). Even those who have urged paying more attention to the intent underlying the Fourth Amendment generally have not suggested that "reasonableness" should depend only on those factors thought important in the eighteenth century. See, for example, Amar, 107 Harv L Rev at 800-11, 818 (cited in note 90) (arguing that the history and text of the Fourth Amendment call for a "broad and powerful" inquiry into the reasonableness of searches and seizures, including consideration of issues of race, class, and gender). In the terms made familiar by Ronald Dworkin, the Fourth Amendment has commonly been understood to embody a "concept," not a "conception." Ronald Dworkin, Taking Rights Seriously 134-37 (Harvard, 1977). Compare Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv L Rev 1, 63 (1955) (arguing that "an awareness on the part of [the] framers [of the Fourteenth Amendment] that it was a constitution they were writing . . . led to a choice of language open to growth").
300. Indeed, as Peter Arenella has observed, the Supreme Court has seldom turned to the "Framers' intent" to resolve any of the central questions of Fourth Amendment jurisprudence: "Instead, the Court's fundamental interpretative strategy is to identify and balance the competing values implicated by this restraint on governmental power." Peter Arenella, Fourth Amendment, in Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds, 2 Encyclopedia of the American Constitution 223 (Prentice-Hall, 1987). See also, for example, Tennessee v Garner, 471 US 1 (1985) (concluding that "sweeping change in the legal and technological context" renders the common law rule allowing deadly force against all fleeing felons no longer consistent with the Fourth Amendment); Katz v United States, 389 US 347, 352 (1967) (reasoning that the Fourth Amendment must be read in light of "the vital role that the public telephone has come to play in private communication"); Amsterdam, 58 Minn L Rev at 399 (cited in note 70) (calling implausible the supposition that the framers of the Fourth Amendment "meant to preserve to their posterity by guarantees of liberty written with the broadest latitude nothing more than hedges against the recurrence of particular forms of evil suffered at the hands of a monarch beyond the seas"). Even those who have urged paying more attention to the intent underlying the Fourth Amendment generally have not suggested that "reasonableness" should depend only on those factors thought important in the eighteenth century. See, for example, Amar, 107 Harv L Rev at 800-11, 818 (cited in note 90) (arguing that the history and text of the Fourth Amendment call for a "broad and powerful" inquiry into the reasonableness of searches and seizures, including consideration of issues of race, class, and gender). In the terms made familiar by Ronald Dworkin, the Fourth Amendment has commonly been understood to embody a "concept," not a "conception." Ronald Dworkin, Taking Rights Seriously 134-37 (Harvard, 1977). Compare Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv L Rev 1, 63 (1955) (arguing that "an awareness on the part of [the] framers [of the Fourteenth Amendment] that it was a constitution they were writing . . . led to a choice of language open to growth").
301. Indeed, as Peter Arenella has observed, the Supreme Court has seldom turned to the "Framers' intent" to resolve any of the central questions of Fourth Amendment jurisprudence: "Instead, the Court's fundamental interpretative strategy is to identify and balance the competing values implicated by this restraint on governmental power." Peter Arenella, Fourth Amendment, in Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds, 2 Encyclopedia of the American Constitution 223 (Prentice-Hall, 1987). See also, for example, Tennessee v Garner, 471 US 1 (1985) (concluding that "sweeping change in the legal and technological context" renders the common law rule allowing deadly force against all fleeing felons no longer consistent with the Fourth Amendment); Katz v United States, 389 US 347, 352 (1967) (reasoning that the Fourth Amendment must be read in light of "the vital role that the public telephone has come to play in private communication"); Amsterdam, 58 Minn L Rev at 399 (cited in note 70) (calling implausible the supposition that the framers of the Fourth Amendment "meant to preserve to their posterity by guarantees of liberty written with the broadest latitude nothing more than hedges against the recurrence of particular forms of evil suffered at the hands of a monarch beyond the seas"). Even those who have urged paying more attention to the intent underlying the Fourth Amendment generally have not suggested that "reasonableness" should depend only on those factors thought important in the eighteenth century. See, for example, Amar, 107 Harv L Rev at 800-11, 818 (cited in note 90) (arguing that the history and text of the Fourth Amendment call for a "broad and powerful" inquiry into the reasonableness of searches and seizures, including consideration of issues of race, class, and gender). In the terms made familiar by Ronald Dworkin, the Fourth Amendment has commonly been understood to embody a "concept," not a "conception." Ronald Dworkin, Taking Rights Seriously 134-37 (Harvard, 1977). Compare Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv L Rev 1, 63 (1955) (arguing that "an awareness on the part of [the] framers [of the Fourteenth Amendment] that it was a constitution they were writing . . . led to a choice of language open to growth").
302. Indeed, as Peter Arenella has observed, the Supreme Court has seldom turned to the "Framers' intent" to resolve any of the central questions of Fourth Amendment jurisprudence: "Instead, the Court's fundamental interpretative strategy is to identify and balance the competing values implicated by this restraint on governmental power." Peter Arenella, Fourth Amendment, in Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds, 2 Encyclopedia of the American Constitution 223 (Prentice-Hall, 1987). See also, for example, Tennessee v Garner, 471 US 1 (1985) (concluding that "sweeping change in the legal and technological context" renders the common law rule allowing deadly force against all fleeing felons no longer consistent with the Fourth Amendment); Katz v United States, 389 US 347, 352 (1967) (reasoning that the Fourth Amendment must be read in light of "the vital role that the public telephone has come to play in private communication"); Amsterdam, 58 Minn L Rev at 399 (cited in note 70) (calling implausible the supposition that the framers of the Fourth Amendment "meant to preserve to their posterity by guarantees of liberty written with the broadest latitude nothing more than hedges against the recurrence of particular forms of evil suffered at the hands of a monarch beyond the seas"). Even those who have urged paying more attention to the intent underlying the Fourth Amendment generally have not suggested that "reasonableness" should depend only on those factors thought important in the eighteenth century. See, for example, Amar, 107 Harv L Rev at 800-11, 818 (cited in note 90) (arguing that the history and text of the Fourth Amendment call for a "broad and powerful" inquiry into the reasonableness of searches and seizures, including consideration of issues of race, class, and gender). In the terms made familiar by Ronald Dworkin, the Fourth Amendment has commonly been understood to embody a "concept," not a "conception." Ronald Dworkin, Taking Rights Seriously 134-37 (Harvard, 1977). Compare Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv L Rev 1, 63 (1955) (arguing that "an awareness on the part of [the] framers [of the Fourteenth Amendment] that it was a constitution they were writing . . . led to a choice of language open to growth").
303. Indeed, as Peter Arenella has observed, the Supreme Court has seldom turned to the "Framers' intent" to resolve any of the central questions of Fourth Amendment jurisprudence: "Instead, the Court's fundamental interpretative strategy is to identify and balance the competing values implicated by this restraint on governmental power." Peter Arenella, Fourth Amendment, in Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds, 2 Encyclopedia of the American Constitution 223 (Prentice-Hall, 1987). See also, for example, Tennessee v Garner, 471 US 1 (1985) (concluding that "sweeping change in the legal and technological context" renders the common law rule allowing deadly force against all fleeing felons no longer consistent with the Fourth Amendment); Katz v United States, 389 US 347, 352 (1967) (reasoning that the Fourth Amendment must be read in light of "the vital role that the public telephone has come to play in private communication"); Amsterdam, 58 Minn L Rev at 399 (cited in note 70) (calling implausible the supposition that the framers of the Fourth Amendment "meant to preserve to their posterity by guarantees of liberty written with the broadest latitude nothing more than hedges against the recurrence of particular forms of evil suffered at the hands of a monarch beyond the seas"). Even those who have urged paying more attention to the intent underlying the Fourth Amendment generally have not suggested that "reasonableness" should depend only on those factors thought important in the eighteenth century. See, for example, Amar, 107 Harv L Rev at 800-11, 818 (cited in note 90) (arguing that the history and text of the Fourth Amendment call for a "broad and powerful" inquiry into the reasonableness of searches and seizures, including consideration of issues of race, class, and gender). In the terms made familiar by Ronald Dworkin, the Fourth Amendment has commonly been understood to embody a "concept," not a "conception." Ronald Dworkin, Taking Rights Seriously 134-37 (Harvard, 1977). Compare Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv L Rev 1, 63 (1955) (arguing that "an awareness on the part of [the] framers [of the Fourteenth Amendment] that it was a constitution they were writing . . . led to a choice of language open to growth").
304. Indeed, as Peter Arenella has observed, the Supreme Court has seldom turned to the "Framers' intent" to resolve any of the central questions of Fourth Amendment jurisprudence: "Instead, the Court's fundamental interpretative strategy is to identify and balance the competing values implicated by this restraint on governmental power." Peter Arenella, Fourth Amendment, in Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds, 2 Encyclopedia of the American Constitution 223 (Prentice-Hall, 1987). See also, for example, Tennessee v Garner, 471 US 1 (1985) (concluding that "sweeping change in the legal and technological context" renders the common law rule allowing deadly force against all fleeing felons no longer consistent with the Fourth Amendment); Katz v United States, 389 US 347, 352 (1967) (reasoning that the Fourth Amendment must be read in light of "the vital role that the public telephone has come to play in private communication"); Amsterdam, 58 Minn L Rev at 399 (cited in note 70) (calling implausible the supposition that the framers of the Fourth Amendment "meant to preserve to their posterity by guarantees of liberty written with the broadest latitude nothing more than hedges against the recurrence of particular forms of evil suffered at the hands of a monarch beyond the seas"). Even those who have urged paying more attention to the intent underlying the Fourth Amendment generally have not suggested that "reasonableness" should depend only on those factors thought important in the eighteenth century. See, for example, Amar, 107 Harv L Rev at 800-11, 818 (cited in note 90) (arguing that the history and text of the Fourth Amendment call for a "broad and powerful" inquiry into the reasonableness of searches and seizures, including consideration of issues of race, class, and gender). In the terms made familiar by Ronald Dworkin, the Fourth Amendment has commonly been understood to embody a "concept," not a "conception." Ronald Dworkin, Taking Rights Seriously 134-37 (Harvard, 1977). Compare Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv L Rev 1, 63 (1955) (arguing that "an awareness on the part of [the] framers [of the Fourteenth Amendment] that it was a constitution they were writing . . . led to a choice of language open to growth").
305. See Carol S Steiker, Second Thoughts about First Principles, 107 Harv L Rev 820, 830-44 (1994);
306. Amsterdam, 58 Minn L Rev at 401, 416 (cited in note 70).
307. See, for example, Amar, 107 Harv L Rev at 808 (cited in note 90);
308. Amsterdam, 58 Minn L Rev at 405-06 (cited in note 70).
309. See note 38 and accompanying text.
310. Whren, 116 S Ct at 1774.
311. See notes 250-55 and accompanying text.
312. See, for example, United States v Armstrong, 116 S Ct 1480, 1486-87 (1996); McCleskey v Kemp, 481 US 279, 298 (1987).
313. See, for example, United States v Armstrong, 116 S Ct 1480, 1486-87 (1996); McCleskey v Kemp, 481 US 279, 298 (1987).
314. See, for example, Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L Rev 1016 (1988); Kenneth L. Karst, Foreword: Equal Citizenship Under the 14th Amendment, 91 Harv L Rev 1, 51 (1977); Randall L. Kennedy, McClesky v Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv L Rev 1388, 1419 (1988); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan L Rev 317 (1987).
315. See, for example, Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L Rev 1016 (1988); Kenneth L. Karst, Foreword: Equal Citizenship Under the 14th Amendment, 91 Harv L Rev 1, 51 (1977); Randall L. Kennedy, McClesky v Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv L Rev 1388, 1419 (1988); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan L Rev 317 (1987).
316. See, for example, Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L Rev 1016 (1988); Kenneth L. Karst, Foreword: Equal Citizenship Under the 14th Amendment, 91 Harv L Rev 1, 51 (1977); Randall L. Kennedy, McClesky v Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv L Rev 1388, 1419 (1988); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan L Rev 317 (1987).
317. See, for example, Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L Rev 1016 (1988); Kenneth L. Karst, Foreword: Equal Citizenship Under the 14th Amendment, 91 Harv L Rev 1, 51 (1977); Randall L. Kennedy, McClesky v Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv L Rev 1388, 1419 (1988); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan L Rev 317 (1987).
318. Sheri Johnson, among others, has noted the "amazing variety of behavior" that law enforcement agents have reported finding suspicious: Police have inferred an attempt to conceal both from a traffic violator's reach toward the dashboard or floor of a car, and from his alighting from his car and walking toward the police. [Narcotics] officers have inferred a desire to avoid detection both from a traveler's being the last passenger to get off a plane, and from his being the first. Immigration and Naturalization Service agents have argued both that it was suspicious that the occupants of a vehicle reacted nervously when a patrol car passed, and that it was suspicious that the occupants failed to look at the patrol car. Finally, the government has argued in a customs case that "excessive" calmness is suspicious. Johnson, 93 Yale L J at 219-20 (cited in note 38).
319. Whren, 116 S Ct at 1774.
320. Id at 1775. See text accompanying notes 75-76.
321. Id at 1777.
322. Id.
323. Id.
324. See notes 79-83 and accompanying text.
325. See Berkemer v McCarty, 468 US 420, 435 (1984) (holding that Miranda warnings are unnecessary before "roadside questioning of a motorist detained pursuant to a routine traffic stop").
326. See, for example, Maryland v Buie, 494 US 325 (1990); New York v Belton, 453 US 454 (1981); United States v Edwards, 415 US 800 (1974); Cupp v Murphy, 412 US 291 (1973); Chimel v California, 395 US 752, 755-68 (1969) (reviewing cases).
327. See, for example, Maryland v Buie, 494 US 325 (1990); New York v Belton, 453 US 454 (1981); United States v Edwards, 415 US 800 (1974); Cupp v Murphy, 412 US 291 (1973); Chimel v California, 395 US 752, 755-68 (1969) (reviewing cases).
328. See, for example, Maryland v Buie, 494 US 325 (1990); New York v Belton, 453 US 454 (1981); United States v Edwards, 415 US 800 (1974); Cupp v Murphy, 412 US 291 (1973); Chimel v California, 395 US 752, 755-68 (1969) (reviewing cases).
329. See, for example, Maryland v Buie, 494 US 325 (1990); New York v Belton, 453 US 454 (1981); United States v Edwards, 415 US 800 (1974); Cupp v Murphy, 412 US 291 (1973); Chimel v California, 395 US 752, 755-68 (1969) (reviewing cases).
330. See, for example, Maryland v Buie, 494 US 325 (1990); New York v Belton, 453 US 454 (1981); United States v Edwards, 415 US 800 (1974); Cupp v Murphy, 412 US 291 (1973); Chimel v California, 395 US 752, 755-68 (1969) (reviewing cases).
331. See, for example, California v Acevedo, 500 US 565, 569-79 (1991) (reviewing cases); California v Carney, 471 US 386 (1985).
332. See, for example, California v Acevedo, 500 US 565, 569-79 (1991) (reviewing cases); California v Carney, 471 US 386 (1985).
333. Johnson v United States, 333 US 10, 14 (1948). As Justice Scalia himself recently pointed out, the "exceptions to the warrant requirement are innumerable." Official Transcript, Richards v Wisconsin, 1997 WL 143822, at *8 (US Mar 24, 1997).
334. Johnson v United States, 333 US 10, 14 (1948). As Justice Scalia himself recently pointed out, the "exceptions to the warrant requirement are innumerable." Official Transcript, Richards v Wisconsin, 1997 WL 143822, at *8 (US Mar 24, 1997).
335. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
336. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
337. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
338. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
339. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
340. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
341. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
342. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
343. Miranda v Arizona, 384 US 436 (1966). See, for example, Davis v United States, 512 US 452 (1994); Minnick v Mississippi, 498 US 146 (1990); Illinois v Perkins, 496 US 292 (1990); Arizona v Roberson, 486 US 675 (1988); New York v Quarles, 467 US 649 (1984); Rhode Island v Innis, 446 US 291 (1980); Edwards v Arizona, 451 US 477 (1981); Michigan v Mosley, 423 US 96 (1975).
344. See, for example, Minnesota v Olson, 495 US 91 (1990); Florida v Riley, 488 US 445 (1989); California v Greenwood, 486 US 35, 41 (1988) (reviewing cases); id at 46-49 (Brennan dissenting) (same).
345. See, for example, Minnesota v Olson, 495 US 91 (1990); Florida v Riley, 488 US 445 (1989); California v Greenwood, 486 US 35, 41 (1988) (reviewing cases); id at 46-49 (Brennan dissenting) (same).
346. See, for example, Minnesota v Olson, 495 US 91 (1990); Florida v Riley, 488 US 445 (1989); California v Greenwood, 486 US 35, 41 (1988) (reviewing cases); id at 46-49 (Brennan dissenting) (same).
347. Some of this had already happened in lower court decisions applying the "reasonable officer" test for pretextual traffic stops. There was confusion regarding the proper reference group for determining "reasonable" police conduct - the entire police force or the officer's unit? - and there was uncertainty regarding the relevance of the officer's own general practices. See Levit, 28 Loyola U Chi L J at 178-80 (cited in note 81). Six months before Whren, the Tenth Circuit had pointed to its own inconsistent answers to these questions as evidence that the test was "unworkable." United States v Botero-Ospino, 71 F3d 783, 786 (10th Cir 1995). See note 81. Of course, courts have faced similar questions, and similar confusion, in applying the "reasonable person" standard in other contexts. How the new test could best be clarified is open to dispute. Professor Levit argues that the test should turn on "local practices" rather than "a particular officer's past history." Levit, 28 Loyola U Chi L J at 180. My own preference would be to allow consideration of any evidence bearing on the question whether a reasonable person in the officer's position, lacking any other purpose, would have stopped the motorist because of traffic violations; in some cases this would include the officer's own conduct, because what a reasonable person would do can be illuminated by what the officer in fact has done. The important point, though, is that the inconsistency and uncertainty created by the new test for pretext - the test the Supreme Court unanimously rejected out of hand in Whren - are the kind of inconsistency and uncertainty widely thought acceptable if not inevitable in the application of new legal rules. See generally S. F. C. Milsom, Reason in the Development of the Common Law, 81 Law Q Rev 496, 513 (1965) (concluding that case-by-case adjudication typically produces "great logical strength in detail and great overall disorder").
348. Some of this had already happened in lower court decisions applying the "reasonable officer" test for pretextual traffic stops. There was confusion regarding the proper reference group for determining "reasonable" police conduct - the entire police force or the officer's unit? - and there was uncertainty regarding the relevance of the officer's own general practices. See Levit, 28 Loyola U Chi L J at 178-80 (cited in note 81). Six months before Whren, the Tenth Circuit had pointed to its own inconsistent answers to these questions as evidence that the test was "unworkable." United States v Botero-Ospino, 71 F3d 783, 786 (10th Cir 1995). See note 81. Of course, courts have faced similar questions, and similar confusion, in applying the "reasonable person" standard in other contexts. How the new test could best be clarified is open to dispute. Professor Levit argues that the test should turn on "local practices" rather than "a particular officer's past history." Levit, 28 Loyola U Chi L J at 180. My own preference would be to allow consideration of any evidence bearing on the question whether a reasonable person in the officer's position, lacking any other purpose, would have stopped the motorist because of traffic violations; in some cases this would include the officer's own conduct, because what a reasonable person would do can be illuminated by what the officer in fact has done. The important point, though, is that the inconsistency and uncertainty created by the new test for pretext - the test the Supreme Court unanimously rejected out of hand in Whren - are the kind of inconsistency and uncertainty widely thought acceptable if not inevitable in the application of new legal rules. See generally S. F. C. Milsom, Reason in the Development of the Common Law, 81 Law Q Rev 496, 513 (1965) (concluding that case-by-case adjudication typically produces "great logical strength in detail and great overall disorder").
349. Some of this had already happened in lower court decisions applying the "reasonable officer" test for pretextual traffic stops. There was confusion regarding the proper reference group for determining "reasonable" police conduct - the entire police force or the officer's unit? - and there was uncertainty regarding the relevance of the officer's own general practices. See Levit, 28 Loyola U Chi L J at 178-80 (cited in note 81). Six months before Whren, the Tenth Circuit had pointed to its own inconsistent answers to these questions as evidence that the test was "unworkable." United States v Botero-Ospino, 71 F3d 783, 786 (10th Cir 1995). See note 81. Of course, courts have faced similar questions, and similar confusion, in applying the "reasonable person" standard in other contexts. How the new test could best be clarified is open to dispute. Professor Levit argues that the test should turn on "local practices" rather than "a particular officer's past history." Levit, 28 Loyola U Chi L J at 180. My own preference would be to allow consideration of any evidence bearing on the question whether a reasonable person in the officer's position, lacking any other purpose, would have stopped the motorist because of traffic violations; in some cases this would include the officer's own conduct, because what a reasonable person would do can be illuminated by what the officer in fact has done. The important point, though, is that the inconsistency and uncertainty created by the new test for pretext - the test the Supreme Court unanimously rejected out of hand in Whren - are the kind of inconsistency and uncertainty widely thought acceptable if not inevitable in the application of new legal rules. See generally S. F. C. Milsom, Reason in the Development of the Common Law, 81 Law Q Rev 496, 513 (1965) (concluding that case-by-case adjudication typically produces "great logical strength in detail and great overall disorder").
350. Some of this had already happened in lower court decisions applying the "reasonable officer" test for pretextual traffic stops. There was confusion regarding the proper reference group for determining "reasonable" police conduct - the entire police force or the officer's unit? - and there was uncertainty regarding the relevance of the officer's own general practices. See Levit, 28 Loyola U Chi L J at 178-80 (cited in note 81). Six months before Whren, the Tenth Circuit had pointed to its own inconsistent answers to these questions as evidence that the test was "unworkable." United States v Botero-Ospino, 71 F3d 783, 786 (10th Cir 1995). See note 81. Of course, courts have faced similar questions, and similar confusion, in applying the "reasonable person" standard in other contexts. How the new test could best be clarified is open to dispute. Professor Levit argues that the test should turn on "local practices" rather than "a particular officer's past history." Levit, 28 Loyola U Chi L J at 180. My own preference would be to allow consideration of any evidence bearing on the question whether a reasonable person in the officer's position, lacking any other purpose, would have stopped the motorist because of traffic violations; in some cases this would include the officer's own conduct, because what a reasonable person would do can be illuminated by what the officer in fact has done. The important point, though, is that the inconsistency and uncertainty created by the new test for pretext - the test the Supreme Court unanimously rejected out of hand in Whren - are the kind of inconsistency and uncertainty widely thought acceptable if not inevitable in the application of new legal rules. See generally S. F. C. Milsom, Reason in the Development of the Common Law, 81 Law Q Rev 496, 513 (1965) (concluding that case-by-case adjudication typically produces "great logical strength in detail and great overall disorder").
351. 116 S Ct at 1774.
352. Compare United States v Martinez-Fuerte, 428 US 543, 563 (1976) (approving selective referrals of motorists to secondary inspection at Border Patrol checkpoint away from the border, "even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry," because "the intrusion here is sufficiently minimal that no particularized reason need to exist to justify it").
353. 117 S Ct at 886.
354. Id.
355. Id at 890 n 12 (Stevens dissenting) (quoting Delaware v Prouse, 440 US 648, 666 (Rehnquist dissenting)). Justice Stevens noted that although the burden imposed on passengers by ordering them out of cars "may well be 'minimal' in individual cases," it could be considered significant by "countless citizens who cherish individual liberty and are offended, embarrassed, and sometimes provoked by arbitrary official commands." 117 S Ct at 888 (Stevens dissenting). But even Justice Stevens wound up making the burden seem of only middling consequence. "Wholly innocent passengers," he argued, "have a constitutionally protected right to decide whether to remain comfortably seated within the vehicle rather than exposing themselves to the elements and to the observation of curious bystanders." Id at 889. Discomfort, inclement weather, and nosy onlookers are surely unpleasant, but a casual reader of the opinions in Maryland v Wilson could be excused for wondering what the fuss was about.
356. Id at 890 n 12 (Stevens dissenting) (quoting Delaware v Prouse, 440 US 648, 666 (Rehnquist dissenting)). Justice Stevens noted that although the burden imposed on passengers by ordering them out of cars "may well be 'minimal' in individual cases," it could be considered significant by "countless citizens who cherish individual liberty and are offended, embarrassed, and sometimes provoked by arbitrary official commands." 117 S Ct at 888 (Stevens dissenting). But even Justice Stevens wound up making the burden seem of only middling consequence. "Wholly innocent passengers," he argued, "have a constitutionally protected right to decide whether to remain comfortably seated within the vehicle rather than exposing themselves to the elements and to the observation of curious bystanders." Id at 889. Discomfort, inclement weather, and nosy onlookers are surely unpleasant, but a casual reader of the opinions in Maryland v Wilson could be excused for wondering what the fuss was about.
357. 116 US at 1774.
358. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
359. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
360. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
361. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
362. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
363. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
364. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
365. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
366. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
367. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
368. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
369. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
370. See, for example, 143 Cong Rec E 10 (daily ed Jan 7, 1997) (remarks of Rep. Conyers) (asserting "[t]here are virtually no African-American males - including Congressmen, actors, athletes, and office workers - who have not been stopped at one time or another for an alleged traffic violation, namely driving while black"); Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash Post A1 (Mar 29, 1996) (noting that "[m]any African American men suspect that police single them out for stops and searches" and that "many law-abiding black motorists . . . find themselves scheming to avoid the police"); Andrea Ford, United by Anger, LA Times B1 (Nov 6, 1996) (reporting that "black men ranging from everyday workers to prosperous professionals and celebrities agree . . . that police indiscriminately detain them because of . . . an unwritten traffic offense - DWB, Driving While Black"); Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (explaining that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black"); David A. Harris, Driving While Black: Unequal Protection Under the Law, Chi Tribune 19 (Mar 11, 1997) (noting that, when pulled over by police, "African-Americans in Illinois and around the country ask . . . 'Is this driving while black again?'"); Pat Schneider, "A Lot Deeper Than a Ticket": Cop Stops Burn Black Drivers, Capital Times (Madison, Wis) 1A (Oct 23, 1996) (describing reports of "common wisdom" among African Americans: "Don't get caught 'DWB' - Driving While Black"). Echoing the reports of many black male professionals, former Assistant Attorney General Deval Patrick has explained, "I still get stopped if I'm driving a nice car in the 'wrong' neighborhood." Deval Patrick, Have Americans Forgotten Who They Are? LA Times B5 (Sept 2, 1996). See also, for example, Christopher Darden, In Contempt 110 (Harper Collins, 1996) ("I always seem to get pulled over by some cop who is suspicious of a black man driving a Mercedes"); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Ford U L J 621, 625 (1993) ("Most black professionals can recount at least one incident of being stopped, roughed up, questioned, or degraded by white police officers"); Washington v Lambert, 98 F3d 1181, 1182 (9th Cir 1996) (describing detentions of innocent persons based largely on race as "all too familiar"). For additional accounts, see Angela J. Davis, Race, Cops, and Traffic Stops, 51 U Miami L Rev 425, 425, 438-40 (1997); David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Valp U L Rev 243, 251-53 (1991).
371. In 1992, for example, reporters in Florida reviewed videotapes of more than 1,000 vehicle stops on Interstate 95. They found "almost 70 percent of the motorists stopped were black or Hispanic," and that "[m]ore than 80% of the cars that were searched were driven by blacks and Hispanics," despite the fact that "the vast majority of interstate drivers are white." Jeff Brazil and Steve Berry, Color of Driver Is Key to Stops in 1-95 Videos, Orlando Sentinel Tribune A1 (Aug 23, 1992). Less than 1% of the drivers stopped received traffic tickets. See id. Similarly, a 1993 study concluded that 13.5% of cars on the New Jersey Turnpike had black occupants, but police records indicated that 46% of motorists stopped on the turnpike between April 1988 and May 1991 were black. See Robert D. McFadden, Police Singled Out Black Drivers in Drug Crackdown, Judge Says, NY Times A33 (Mar 10, 1996). An ACLU study in 1996 concluded that 17% of motorists on Interstate 95 in Maryland were black, although state police reported that blacks were 73% of the motorists stopped. See Kris Antonelli, State Police Deny Searches Are Race-Based, Baltimore Sun 18B (Nov 16, 1996); Davis, 51 U Miami L Rev at 441.
372. In 1992, for example, reporters in Florida reviewed videotapes of more than 1,000 vehicle stops on Interstate 95. They found "almost 70 percent of the motorists stopped were black or Hispanic," and that "[m]ore than 80% of the cars that were searched were driven by blacks and Hispanics," despite the fact that "the vast majority of interstate drivers are white." Jeff Brazil and Steve Berry, Color of Driver Is Key to Stops in 1-95 Videos, Orlando Sentinel Tribune A1 (Aug 23, 1992). Less than 1% of the drivers stopped received traffic tickets. See id. Similarly, a 1993 study concluded that 13.5% of cars on the New Jersey Turnpike had black occupants, but police records indicated that 46% of motorists stopped on the turnpike between April 1988 and May 1991 were black. See Robert D. McFadden, Police Singled Out Black Drivers in Drug Crackdown, Judge Says, NY Times A33 (Mar 10, 1996). An ACLU study in 1996 concluded that 17% of motorists on Interstate 95 in Maryland were black, although state police reported that blacks were 73% of the motorists stopped. See Kris Antonelli, State Police Deny Searches Are Race-Based, Baltimore Sun 18B (Nov 16, 1996); Davis, 51 U Miami L Rev at 441.
373. In 1992, for example, reporters in Florida reviewed videotapes of more than 1,000 vehicle stops on Interstate 95. They found "almost 70 percent of the motorists stopped were black or Hispanic," and that "[m]ore than 80% of the cars that were searched were driven by blacks and Hispanics," despite the fact that "the vast majority of interstate drivers are white." Jeff Brazil and Steve Berry, Color of Driver Is Key to Stops in 1-95 Videos, Orlando Sentinel Tribune A1 (Aug 23, 1992). Less than 1% of the drivers stopped received traffic tickets. See id. Similarly, a 1993 study concluded that 13.5% of cars on the New Jersey Turnpike had black occupants, but police records indicated that 46% of motorists stopped on the turnpike between April 1988 and May 1991 were black. See Robert D. McFadden, Police Singled Out Black Drivers in Drug Crackdown, Judge Says, NY Times A33 (Mar 10, 1996). An ACLU study in 1996 concluded that 17% of motorists on Interstate 95 in Maryland were black, although state police reported that blacks were 73% of the motorists stopped. See Kris Antonelli, State Police Deny Searches Are Race-Based, Baltimore Sun 18B (Nov 16, 1996); Davis, 51 U Miami L Rev at 441.
374. In 1992, for example, reporters in Florida reviewed videotapes of more than 1,000 vehicle stops on Interstate 95. They found "almost 70 percent of the motorists stopped were black or Hispanic," and that "[m]ore than 80% of the cars that were searched were driven by blacks and Hispanics," despite the fact that "the vast majority of interstate drivers are white." Jeff Brazil and Steve Berry, Color of Driver Is Key to Stops in 1-95 Videos, Orlando Sentinel Tribune A1 (Aug 23, 1992). Less than 1% of the drivers stopped received traffic tickets. See id. Similarly, a 1993 study concluded that 13.5% of cars on the New Jersey Turnpike had black occupants, but police records indicated that 46% of motorists stopped on the turnpike between April 1988 and May 1991 were black. See Robert D. McFadden, Police Singled Out Black Drivers in Drug Crackdown, Judge Says, NY Times A33 (Mar 10, 1996). An ACLU study in 1996 concluded that 17% of motorists on Interstate 95 in Maryland were black, although state police reported that blacks were 73% of the motorists stopped. See Kris Antonelli, State Police Deny Searches Are Race-Based, Baltimore Sun 18B (Nov 16, 1996); Davis, 51 U Miami L Rev at 441.
375. Developments, 101 Harv L Rev at 1515 (cited in note 38).
376. See also United States v Martinez-Fuerte, 428 US 543, 573 (1976) (Brennan dissenting) (warning that selective referral of Mexican American motorists for secondary inspection at immigration checkpoints inside the United States is likely to stir "deep resentment" because of "a sense of unfair discrimination");
377. Memphis v Greene, 451 US 100, 147 (1981) (Marshall dissenting) (noting that closing street in white neighborhood to principally black through-traffic injured black motorists in part by sending them "a clear, though sophisticated, message that because of their race, they are to stay out of the all-white enclave").
378. Paul Chevigny, Edge of the Knife: Police Violence in the Americas 45 (New Press, 1995).
379. Washington v Lambert, 98 F3d 1181, 1182 n 1 (9th Cir 1996).
380. Charles J. Ogletree et al, Beyond the Rodney King Story: An Investigation of Police Conduct in Minority Communities 23 (Northeastern, 1995).
381. Id at 40. Representative Conyers has suggested that "this kind of harassment is even more serious than police brutality," because "no one hears about this, no one does anything about it." 143 Cong Rec E 10 (daily ed Jan 7, 1997).
382. Id at 40. Representative Conyers has suggested that "this kind of harassment is even more serious than police brutality," because "no one hears about this, no one does anything about it." 143 Cong Rec E 10 (daily ed Jan 7, 1997).
383. Ogletree et al, Beyond the Rodney King Story at 103. Survey data confirm the broad gulf between views of the police among whites and those among blacks and other minorities. When asked how much confidence they have in the police, 26% of blacks and 23% of racial minorities more broadly say "very little" or "none," compared to only 9% of whites. See US Dep't of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics -1995 133 (GPO, 1996). Thirty-two percent of blacks and 30% of all nonwhites rate the honesty and ethical standards of police officers as "low" or "very low," compared to only 11% of whites. See id at 140.
384. Report of the National Advisory Commission on Civil Disorders 143-44, 302-04 (Dutton, 1968).
385. 392 US 1 (1968).
386. Id at 14.
387. Id at 17.
388. Id at 16-17. Few readers in 1968 needed to be told the race of the "citizen stand[ing] helpless, perhaps facing a wall with his hands raised," any more than pop music listeners in 1971 needed to be told the color of "frightened faces to the wall." Sly and the Family Stone, Brave & Strong, on There's a Riot Goin' On (Epic Records, 1971). See also Greil Marcus, Mystery Train: Images of America in Rock 'n' Roll Music 79 (Penguin, 3d ed 1990).
389. Id at 16-17. Few readers in 1968 needed to be told the race of the "citizen stand[ing] helpless, perhaps facing a wall with his hands raised," any more than pop music listeners in 1971 needed to be told the color of "frightened faces to the wall." Sly and the Family Stone, Brave & Strong, on There's a Riot Goin' On (Epic Records, 1971). See also Greil Marcus, Mystery Train: Images of America in Rock 'n' Roll Music 79 (Penguin, 3d ed 1990).
390. Id at 16-17. Few readers in 1968 needed to be told the race of the "citizen stand[ing] helpless, perhaps facing a wall with his hands raised," any more than pop music listeners in 1971 needed to be told the color of "frightened faces to the wall." Sly and the Family Stone, Brave & Strong, on There's a Riot Goin' On (Epic Records, 1971). See also Greil Marcus, Mystery Train: Images of America in Rock 'n' Roll Music 79 (Penguin, 3d ed 1990).
391. 392 US at 10.
392. Id at 11.
393. The decision was a conscious compromise, refusing either to exempt investigatory stops from Fourth Amendment scrutiny or to subject them to the traditional requirement of a warrant issued by a judge or magistrate based on a showing of probable cause. Chief justice Warren seemed aware that the intermediate requirements he imposed - reasonable suspicion of criminality for a stop, reasonable suspicion of danger for a frisk - left room for a large amount of abuse. Presumably that is why he prefaced his analysis by pointing out the limited usefulness of the exclusionary rule "where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal." Id at 14. It was in this context that the Chief Justice mentioned the "wholesale harassment of minority groups; such harassment, he pointed out, "will not be stopped by the exclusion of any evidence from any criminal trial." Id at 14-15. For a thoughtful argument that "the Warren Court's world-weary realism . . . was, in fact, highly unrealistic," see Adina Schwartz, "Just Take Away Their Guns": The Hidden Racism of Terry v Ohio, 23 Fordham Urban L J 317, 325, 347-59 (1996). Schwartz also contends that the pessimism in Terry about the effectiveness of the exclusionary rule amounted to a determination that "facts about racial impact provide no reason for legal limits on police discretion to stop and frisk." See id at 346. I think this misreads the decision. The Terry Court made clear that where "overbearing or harassing" conduct by the police is identified, "it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials." 392 US at 15. Moreover, as I have argued in the text, the view the majority took of investigatory stops seems to have been strongly influenced by its awareness of how these stops were experienced in minority neighborhoods.
394. The decision was a conscious compromise, refusing either to exempt investigatory stops from Fourth Amendment scrutiny or to subject them to the traditional requirement of a warrant issued by a judge or magistrate based on a showing of probable cause. Chief justice Warren seemed aware that the intermediate requirements he imposed - reasonable suspicion of criminality for a stop, reasonable suspicion of danger for a frisk - left room for a large amount of abuse. Presumably that is why he prefaced his analysis by pointing out the limited usefulness of the exclusionary rule "where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal." Id at 14. It was in this context that the Chief Justice mentioned the "wholesale harassment of minority groups; such harassment, he pointed out, "will not be stopped by the exclusion of any evidence from any criminal trial." Id at 14-15. For a thoughtful argument that "the Warren Court's world-weary realism . . . was, in fact, highly unrealistic," see Adina Schwartz, "Just Take Away Their Guns": The Hidden Racism of Terry v Ohio, 23 Fordham Urban L J 317, 325, 347-59 (1996). Schwartz also contends that the pessimism in Terry about the effectiveness of the exclusionary rule amounted to a determination that "facts about racial impact provide no reason for legal limits on police discretion to stop and frisk." See id at 346. I think this misreads the decision. The Terry Court made clear that where "overbearing or harassing" conduct by the police is identified, "it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials." 392 US at 15. Moreover, as I have argued in the text, the view the majority took of investigatory stops seems to have been strongly influenced by its awareness of how these stops were experienced in minority neighborhoods.
395. The decision was a conscious compromise, refusing either to exempt investigatory stops from Fourth Amendment scrutiny or to subject them to the traditional requirement of a warrant issued by a judge or magistrate based on a showing of probable cause. Chief justice Warren seemed aware that the intermediate requirements he imposed - reasonable suspicion of criminality for a stop, reasonable suspicion of danger for a frisk - left room for a large amount of abuse. Presumably that is why he prefaced his analysis by pointing out the limited usefulness of the exclusionary rule "where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal." Id at 14. It was in this context that the Chief Justice mentioned the "wholesale harassment of minority groups; such harassment, he pointed out, "will not be stopped by the exclusion of any evidence from any criminal trial." Id at 14-15. For a thoughtful argument that "the Warren Court's world-weary realism . . . was, in fact, highly unrealistic," see Adina Schwartz, "Just Take Away Their Guns": The Hidden Racism of Terry v Ohio, 23 Fordham Urban L J 317, 325, 347-59 (1996). Schwartz also contends that the pessimism in Terry about the effectiveness of the exclusionary rule amounted to a determination that "facts about racial impact provide no reason for legal limits on police discretion to stop and frisk." See id at 346. I think this misreads the decision. The Terry Court made clear that where "overbearing or harassing" conduct by the police is identified, "it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials." 392 US at 15. Moreover, as I have argued in the text, the view the majority took of investigatory stops seems to have been strongly influenced by its awareness of how these stops were experienced in minority neighborhoods.
396. 392 US at 9.
397. See, for example, Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L J 1287, 1305-06 (1982); Steiker, 107 Harv L Rev at 841-44 (cited in note 169); A. Kenneth Pye, The Warren Court and Criminal Procedure 67 Mich L Rev 249, 256 (1968).
398. See, for example, Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L J 1287, 1305-06 (1982); Steiker, 107 Harv L Rev at 841-44 (cited in note 169); A. Kenneth Pye, The Warren Court and Criminal Procedure 67 Mich L Rev 249, 256 (1968).
399. See, for example, Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L J 1287, 1305-06 (1982); Steiker, 107 Harv L Rev at 841-44 (cited in note 169); A. Kenneth Pye, The Warren Court and Criminal Procedure 67 Mich L Rev 249, 256 (1968).
400. See, for example, Johnson, 73 Cornell L Rev at 1016 (cited in note 175); Maclin, 26 Valp U L Rev at 243 (cited in note 196); Schwartz, 23 Fordham Urban L J at 317 (cited in note 211); Developments, 101 Harv L Rev at 1500-20 (cited in note 38).
401. See, for example, Johnson, 73 Cornell L Rev at 1016 (cited in note 175); Maclin, 26 Valp U L Rev at 243 (cited in note 196); Schwartz, 23 Fordham Urban L J at 317 (cited in note 211); Developments, 101 Harv L Rev at 1500-20 (cited in note 38).
402. See, for example, Johnson, 73 Cornell L Rev at 1016 (cited in note 175); Maclin, 26 Valp U L Rev at 243 (cited in note 196); Schwartz, 23 Fordham Urban L J at 317 (cited in note 211); Developments, 101 Harv L Rev at 1500-20 (cited in note 38).
403. See, for example, Johnson, 73 Cornell L Rev at 1016 (cited in note 175); Maclin, 26 Valp U L Rev at 243 (cited in note 196); Schwartz, 23 Fordham Urban L J at 317 (cited in note 211); Developments, 101 Harv L Rev at 1500-20 (cited in note 38).
404. Alderman v United States, 394 US 165, 179 n 11 (1969); Terry v Ohio, 392 US 1, 8 (1968); Katz v United States, 389 US 347, 360 (1967) (Harlan concurring).
405. Alderman v United States, 394 US 165, 179 n 11 (1969); Terry v Ohio, 392 US 1, 8 (1968); Katz v United States, 389 US 347, 360 (1967) (Harlan concurring).
406. Alderman v United States, 394 US 165, 179 n 11 (1969); Terry v Ohio, 392 US 1, 8 (1968); Katz v United States, 389 US 347, 360 (1967) (Harlan concurring).
407. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 Mich L Rev 1016, 1020-24 (1995); Robinette, 117 S Ct at 425 (Stevens dissenting) (noting that even innocent motorist "have an interest in preserving the privacy of their vehicles and possessions from the prying eyes of a curious stranger").
408. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 Mich L Rev 1016, 1020-24 (1995); Robinette, 117 S Ct at 425 (Stevens dissenting) (noting that even innocent motorist "have an interest in preserving the privacy of their vehicles and possessions from the prying eyes of a curious stranger").
409. See, for example, Stuntz, 93 Mich L Rev at 1049-54.
410. See, for example, Amsterdam, 58 Minn L Rev at 407-08 (cited in note 70).
411. Stuntz, 93 Mich L Rev at 1021.
412. See United States v Place, 462 US 696 (1983).
413. Stuntz, 93 Mich L Rev at 1062.
414. Professor Stuntz has made much the same point: "The question should not be whether the officer had the suspect's permission to look at something. Permission will always be more fictive than real anyway. Rather, the question should be whether the officer's behavior was too coercive given the reason for the encounter." Stuntz, 93 Mich L Rev at 1064.
415. 412 US 218 (1973).
416. 501 US 429 (1991). Carol Steiker has plausibly characterized Schneckloth and Bostick as the modern Fourth Amendment decisions "that are most out of sync with the spirit (if not the letter) of the Warren Court's criminal procedure." See Steiker, 94 Mich L Rev at 2491 (cited in note 146).
417. 501 US 429 (1991). Carol Steiker has plausibly characterized Schneckloth and Bostick as the modern Fourth Amendment decisions "that are most out of sync with the spirit (if not the letter) of the Warren Court's criminal procedure." See Steiker, 94 Mich L Rev at 2491 (cited in note 146).
418. 412 US at 228.
419. Id at 227 Compare Moran v Burbine, 475 US 412, 424 (1986) (explaining that the rules set forth in Miranda v Arizona, 384 US 436 (1966), strike "the proper balance between society's legitimate law enforcement interests and the protection of the defendant's Fifth Amendment rights").
420. Id at 227 Compare Moran v Burbine, 475 US 412, 424 (1986) (explaining that the rules set forth in Miranda v Arizona, 384 US 436 (1966), strike "the proper balance between society's legitimate law enforcement interests and the protection of the defendant's Fifth Amendment rights").
421. Bustamonte, 412 US at 228. Much of Chief Justice Warren's majority opinion in Miranda v Arizona, 384 US 436 (1966), was taken up with a detailed explication of how a suspect questioned in custody is "subjugate[d] . . . to the will of his examiner." Id at 457. Ultimately, however, Miranda suggested that "adequate protective devices" - notably the famous series of warnings - could entirely "dispel the compulsion inherent in custodial surroundings." Id at 458. Two decades later the Court made this explicit: "full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process." Moran v Burbine, 475 US 412, 427 (1986). The utter falsity of this assumption is readily apparent to anyone who has ever practiced criminal law - or for that matter watched an episode of NYPD Blue. The Court has also held that Miranda warnings need not be given before questioning at a routine traffic stop, because that setting does not impose pressures on a suspect "that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Berkemer v McCarty, 468 US 420, 437 (1984).
422. Bustamonte, 412 US at 228. Much of Chief Justice Warren's majority opinion in Miranda v Arizona, 384 US 436 (1966), was taken up with a detailed explication of how a suspect questioned in custody is "subjugate[d] . . . to the will of his examiner." Id at 457. Ultimately, however, Miranda suggested that "adequate protective devices" - notably the famous series of warnings - could entirely "dispel the compulsion inherent in custodial surroundings." Id at 458. Two decades later the Court made this explicit: "full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process." Moran v Burbine, 475 US 412, 427 (1986). The utter falsity of this assumption is readily apparent to anyone who has ever practiced criminal law - or for that matter watched an episode of NYPD Blue. The Court has also held that Miranda warnings need not be given before questioning at a routine traffic stop, because that setting does not impose pressures on a suspect "that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Berkemer v McCarty, 468 US 420, 437 (1984).
423. Bustamonte, 412 US at 228. Much of Chief Justice Warren's majority opinion in Miranda v Arizona, 384 US 436 (1966), was taken up with a detailed explication of how a suspect questioned in custody is "subjugate[d] . . . to the will of his examiner." Id at 457. Ultimately, however, Miranda suggested that "adequate protective devices" - notably the famous series of warnings - could entirely "dispel the compulsion inherent in custodial surroundings." Id at 458. Two decades later the Court made this explicit: "full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process." Moran v Burbine, 475 US 412, 427 (1986). The utter falsity of this assumption is readily apparent to anyone who has ever practiced criminal law - or for that matter watched an episode of NYPD Blue. The Court has also held that Miranda warnings need not be given before questioning at a routine traffic stop, because that setting does not impose pressures on a suspect "that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Berkemer v McCarty, 468 US 420, 437 (1984).
424. Bustamonte, 412 US at 228. Much of Chief Justice Warren's majority opinion in Miranda v Arizona, 384 US 436 (1966), was taken up with a detailed explication of how a suspect questioned in custody is "subjugate[d] . . . to the will of his examiner." Id at 457. Ultimately, however, Miranda suggested that "adequate protective devices" - notably the famous series of warnings - could entirely "dispel the compulsion inherent in custodial surroundings." Id at 458. Two decades later the Court made this explicit: "full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process." Moran v Burbine, 475 US 412, 427 (1986). The utter falsity of this assumption is readily apparent to anyone who has ever practiced criminal law - or for that matter watched an episode of NYPD Blue. The Court has also held that Miranda warnings need not be given before questioning at a routine traffic stop, because that setting does not impose pressures on a suspect "that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Berkemer v McCarty, 468 US 420, 437 (1984).
425. 412 US at 220-21.
426. 501 US at 436.
427. The point was underscored by the Court's response to the argument that the situation must have been coercive, because otherwise Bostick would never have agreed, as he ultimately did, to the search of his luggage, which turned out to contain cocaine. Writing for the majority, Justice O'Connor instructed the Florida Supreme Court to reject this argument on remand, "because the 'reasonable person' test presupposes an innocent person." 501 US at 438. As a matter of logic, this made no sense; Bostick's argument was that his own behavior suggested most people in his situation, regardless whether they had anything hide, would feel pressure to cooperate. The real reason the Court could not accept Bostick's argument was that it proved too much: treat consenting against one's interest as evidence of coercion, and the whole fiction of "consent" becomes impossible to sustain.
428. The Florida Supreme Court took the hint on remand and found the encounter in Bostick "consensual" and hence fully constitutional. See Bostick v State, 593 So2d 494 (Fla 1992).
429. See 117 S Ct at 425 (Stevens dissenting). In Ornelas the supposition proved too fanciful even for the government, which "conceded . . . that when the officers approached petitioners in the parking lot, a reasonable person would not have felt free to leave." 116 S Ct at 1660. The concession seems sensible, although it is unclear what if anything made the encounter more coercive than a typical traffic stop.
430. 117 S Ct at 421.
431. Id.
432. Lon Fuller, Legal Fictions (Stanford, 1967).
433. Id at 9-10.
434. Id.
435. Bustamonte and his companions appear to have been hispanic. See Schneckloth v Bustamonte, 412 US 218, 220 (1973). Terrance Bostick was black. Telephone interview with Kenneth P. Speiller, counsel for Terrance Bostick (Aug 19, 1994). For a provocative discussion of the significance of Bostick's race, see Dwight L. Greene, Justice Scalia and Tonto, Judicial Pluralistic Ignorance, and the Myth of Colorless Individualism in Bostick v Florida, 67 Tulane L Rev 1979, 2022-43 (1993).
436. Bustamonte and his companions appear to have been hispanic. See Schneckloth v Bustamonte, 412 US 218, 220 (1973). Terrance Bostick was black. Telephone interview with Kenneth P. Speiller, counsel for Terrance Bostick (Aug 19, 1994). For a provocative discussion of the significance of Bostick's race, see Dwight L. Greene, Justice Scalia and Tonto, Judicial Pluralistic Ignorance, and the Myth of Colorless Individualism in Bostick v Florida, 67 Tulane L Rev 1979, 2022-43 (1993).
437. This is not to say that without the fiction of Consent all such pressure would be deemed unlawful. Some investigative procedures currently sustained as "consensual" would doubtless still be allowed on the ground that they involve only "reasonable" coercion, or coercion so slight as to render the Fourth Amendment inapplicable - but probably not procedures the whole point of which is to take advantage of those ignorant of their rights.
438. Bumper v North Carolina, 391 US 543, 550 (1968).
439. Unlike Bustamonte and Bostick, Robert Robinette was white. Telephone interview with Carley J. Ingram, Assistant Prosecuting Attorney, Montgomery County, Ohio (Apr 16, 1997).
440. See Graham v Connor, 490 US 386 (1989); Tennessee v Garner, 471 US 1 (1985).
441. See Graham v Connor, 490 US 386 (1989); Tennessee v Garner, 471 US 1 (1985).
442. It has grown more difficult in recent years because of the spread of video cameras -both those in the hands of bystanders, and those that a growing number of police departments install in their patrol cars. But cameras in patrol cars need to be turned on, and bystanders with video cameras are not always present.
443. See Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don't Legislatures Give a Damn About the Rights of the Accused? 44 Syracuse L Rev 1079 (1993). The isolated exceptions tend to prove the rule. For example, when debating the Exclusionary Rule Reform Act of 1995, HR 666, 104th Cong, 1st Sess (1995), which purported to bar the exclusion in federal criminal case of any evidence obtained by a search or seizure "carried out in circumstances justifying an objectively reasonable belief that it was in conformity with the Fourth Amendment," the House of Representatives approved amendments exempting searches and seizures carried out by the Internal Revenue Service and by the Bureau of Alcohol, Tobacco, and Firearms, but quickly and overwhelmingly rejected a similar amendment exempting searches and seizures carried out by the Immigration and Naturalization Service. See 141 Cong Rec H 1386-98 (daily ed Feb 8, 1995).
444. See Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don't Legislatures Give a Damn About the Rights of the Accused? 44 Syracuse L Rev 1079 (1993). The isolated exceptions tend to prove the rule. For example, when debating the Exclusionary Rule Reform Act of 1995, HR 666, 104th Cong, 1st Sess (1995), which purported to bar the exclusion in federal criminal case of any evidence obtained by a search or seizure "carried out in circumstances justifying an objectively reasonable belief that it was in conformity with the Fourth Amendment," the House of Representatives approved amendments exempting searches and seizures carried out by the Internal Revenue Service and by the Bureau of Alcohol, Tobacco, and Firearms, but quickly and overwhelmingly rejected a similar amendment exempting searches and seizures carried out by the Immigration and Naturalization Service. See 141 Cong Rec H 1386-98 (daily ed Feb 8, 1995).
445. These concerns led Justice O'Connor, joined by Chief Justice Burger and Justice Rehnquist, to dissent even from the Court's ruling in Tennessee v Garner, 471 US 1 (1985), imposing Fourth Amendment restrictions on the use of deadly force against fleeing felons. See id at 22-33 (1985) (O'Connor dissenting).
446. These concerns led Justice O'Connor, joined by Chief Justice Burger and Justice Rehnquist, to dissent even from the Court's ruling in Tennessee v Garner, 471 US 1 (1985), imposing Fourth Amendment restrictions on the use of deadly force against fleeing felons. See id at 22-33 (1985) (O'Connor dissenting).
447. See Stuntz, 93 Mich L Rev at 1072 (cited in note 216). While acknowledging that suppression is better suited "to rules about evidence gathering" than to "regulating police violence," Professor Stuntz suggests that "the causal connection between the police misconduct and finding the evidence is convenient, but it need not be crucial." See id. But given the controversy already generated by the suppression of evidence that would not have been discovered but for police illegality, it seems unlikely that courts or legislatures will expand the rule to exclude evidence that would have been discovered in any event. Indeed, the trend in the caselaw is in the other direction. See Nix v Williams, 467 US 431, 444 (1984) (holding that even illegally obtained evidence is admissible if it "ultimately or inevitably would have been discovered by lawful means"); New York v Harris, 495 US 14, 21 (1990) (holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [Payton v New York, 445 US 573 (1980)]").
448. See Stuntz, 93 Mich L Rev at 1072 (cited in note 216). While acknowledging that suppression is better suited "to rules about evidence gathering" than to "regulating police violence," Professor Stuntz suggests that "the causal connection between the police misconduct and finding the evidence is convenient, but it need not be crucial." See id. But given the controversy already generated by the suppression of evidence that would not have been discovered but for police illegality, it seems unlikely that courts or legislatures will expand the rule to exclude evidence that would have been discovered in any event. Indeed, the trend in the caselaw is in the other direction. See Nix v Williams, 467 US 431, 444 (1984) (holding that even illegally obtained evidence is admissible if it "ultimately or inevitably would have been discovered by lawful means"); New York v Harris, 495 US 14, 21 (1990) (holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [Payton v New York, 445 US 573 (1980)]").
449. See Stuntz, 93 Mich L Rev at 1072 (cited in note 216). While acknowledging that suppression is better suited "to rules about evidence gathering" than to "regulating police violence," Professor Stuntz suggests that "the causal connection between the police misconduct and finding the evidence is convenient, but it need not be crucial." See id. But given the controversy already generated by the suppression of evidence that would not have been discovered but for police illegality, it seems unlikely that courts or legislatures will expand the rule to exclude evidence that would have been discovered in any event. Indeed, the trend in the caselaw is in the other direction. See Nix v Williams, 467 US 431, 444 (1984) (holding that even illegally obtained evidence is admissible if it "ultimately or inevitably would have been discovered by lawful means"); New York v Harris, 495 US 14, 21 (1990) (holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [Payton v New York, 445 US 573 (1980)]").
450. See Stuntz, 93 Mich L Rev at 1072 (cited in note 216). While acknowledging that suppression is better suited "to rules about evidence gathering" than to "regulating police violence," Professor Stuntz suggests that "the causal connection between the police misconduct and finding the evidence is convenient, but it need not be crucial." See id. But given the controversy already generated by the suppression of evidence that would not have been discovered but for police illegality, it seems unlikely that courts or legislatures will expand the rule to exclude evidence that would have been discovered in any event. Indeed, the trend in the caselaw is in the other direction. See Nix v Williams, 467 US 431, 444 (1984) (holding that even illegally obtained evidence is admissible if it "ultimately or inevitably would have been discovered by lawful means"); New York v Harris, 495 US 14, 21 (1990) (holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [Payton v New York, 445 US 573 (1980)]").
451. See, for example, Amsterdam, 58 Minn L Rev at 429-30 (cited in note 70); Developments, 101 Harv L Rev at 1497 n 19 (cited in note 38). The "obvious futility of relegating the Fourth Amendment to the protection of other remedies" was at the heart of the Supreme Court's decision to extend the exclusionary rule to state criminal cases. Mapp v Ohio, 367 US 643, 653 (1961). Despite perennial calls for "refurbishing the traditional civilenforcement model," Amar, 107 Harv L Rev at 811 (cited in note 90), the futility remains obvious. The central difficulty is that truly effective civil remedies overdeter if levied against individual officers, see Peter H. Schuck, Suing Government 71-73 (Yale, 1983); Stuntz, 93 Mich L Rev at 1073 n 203 (cited in note 216), and have proven too expensive either for the public to assume voluntarily, or for the courts to impose on the public, see, for example, Monell v Dep't of Social Servs, 436 US 658 (1978) (holding that municipalities are liable under USC § 1983 only for civil rights violations resulting from official policy), followed in Board of County Comm'rs v Brown, 117 S Ct 1382 (1997) (holding municipality not liable for excessive force employed by officer hired in negligent disregard of his history of violence).
452. See, for example, Amsterdam, 58 Minn L Rev at 429-30 (cited in note 70); Developments, 101 Harv L Rev at 1497 n 19 (cited in note 38). The "obvious futility of relegating the Fourth Amendment to the protection of other remedies" was at the heart of the Supreme Court's decision to extend the exclusionary rule to state criminal cases. Mapp v Ohio, 367 US 643, 653 (1961). Despite perennial calls for "refurbishing the traditional civilenforcement model," Amar, 107 Harv L Rev at 811 (cited in note 90), the futility remains obvious. The central difficulty is that truly effective civil remedies overdeter if levied against individual officers, see Peter H. Schuck, Suing Government 71-73 (Yale, 1983); Stuntz, 93 Mich L Rev at 1073 n 203 (cited in note 216), and have proven too expensive either for the public to assume voluntarily, or for the courts to impose on the public, see, for example, Monell v Dep't of Social Servs, 436 US 658 (1978) (holding that municipalities are liable under USC § 1983 only for civil rights violations resulting from official policy), followed in Board of County Comm'rs v Brown, 117 S Ct 1382 (1997) (holding municipality not liable for excessive force employed by officer hired in negligent disregard of his history of violence).
453. See, for example, Amsterdam, 58 Minn L Rev at 429-30 (cited in note 70); Developments, 101 Harv L Rev at 1497 n 19 (cited in note 38). The "obvious futility of relegating the Fourth Amendment to the protection of other remedies" was at the heart of the Supreme Court's decision to extend the exclusionary rule to state criminal cases. Mapp v Ohio, 367 US 643, 653 (1961). Despite perennial calls for "refurbishing the traditional civilenforcement model," Amar, 107 Harv L Rev at 811 (cited in note 90), the futility remains obvious. The central difficulty is that truly effective civil remedies overdeter if levied against individual officers, see Peter H. Schuck, Suing Government 71-73 (Yale, 1983); Stuntz, 93 Mich L Rev at 1073 n 203 (cited in note 216), and have proven too expensive either for the public to assume voluntarily, or for the courts to impose on the public, see, for example, Monell v Dep't of Social Servs, 436 US 658 (1978) (holding that municipalities are liable under USC § 1983 only for civil rights violations resulting from official policy), followed in Board of County Comm'rs v Brown, 117 S Ct 1382 (1997) (holding municipality not liable for excessive force employed by officer hired in negligent disregard of his history of violence).
454. See, for example, Amsterdam, 58 Minn L Rev at 429-30 (cited in note 70); Developments, 101 Harv L Rev at 1497 n 19 (cited in note 38). The "obvious futility of relegating the Fourth Amendment to the protection of other remedies" was at the heart of the Supreme Court's decision to extend the exclusionary rule to state criminal cases. Mapp v Ohio, 367 US 643, 653 (1961). Despite perennial calls for "refurbishing the traditional civilenforcement model," Amar, 107 Harv L Rev at 811 (cited in note 90), the futility remains obvious. The central difficulty is that truly effective civil remedies overdeter if levied against individual officers, see Peter H. Schuck, Suing Government 71-73 (Yale, 1983); Stuntz, 93 Mich L Rev at 1073 n 203 (cited in note 216), and have proven too expensive either for the public to assume voluntarily, or for the courts to impose on the public, see, for example, Monell v Dep't of Social Servs, 436 US 658 (1978) (holding that municipalities are liable under USC § 1983 only for civil rights violations resulting from official policy), followed in Board of County Comm'rs v Brown, 117 S Ct 1382 (1997) (holding municipality not liable for excessive force employed by officer hired in negligent disregard of his history of violence).
455. See, for example, Amsterdam, 58 Minn L Rev at 429-30 (cited in note 70); Developments, 101 Harv L Rev at 1497 n 19 (cited in note 38). The "obvious futility of relegating the Fourth Amendment to the protection of other remedies" was at the heart of the Supreme Court's decision to extend the exclusionary rule to state criminal cases. Mapp v Ohio, 367 US 643, 653 (1961). Despite perennial calls for "refurbishing the traditional civilenforcement model," Amar, 107 Harv L Rev at 811 (cited in note 90), the futility remains obvious. The central difficulty is that truly effective civil remedies overdeter if levied against individual officers, see Peter H. Schuck, Suing Government 71-73 (Yale, 1983); Stuntz, 93 Mich L Rev at 1073 n 203 (cited in note 216), and have proven too expensive either for the public to assume voluntarily, or for the courts to impose on the public, see, for example, Monell v Dep't of Social Servs, 436 US 658 (1978) (holding that municipalities are liable under USC § 1983 only for civil rights violations resulting from official policy), followed in Board of County Comm'rs v Brown, 117 S Ct 1382 (1997) (holding municipality not liable for excessive force employed by officer hired in negligent disregard of his history of violence).
456. See, for example, Amsterdam, 58 Minn L Rev at 429-30 (cited in note 70); Developments, 101 Harv L Rev at 1497 n 19 (cited in note 38). The "obvious futility of relegating the Fourth Amendment to the protection of other remedies" was at the heart of the Supreme Court's decision to extend the exclusionary rule to state criminal cases. Mapp v Ohio, 367 US 643, 653 (1961). Despite perennial calls for "refurbishing the traditional civilenforcement model," Amar, 107 Harv L Rev at 811 (cited in note 90), the futility remains obvious. The central difficulty is that truly effective civil remedies overdeter if levied against individual officers, see Peter H. Schuck, Suing Government 71-73 (Yale, 1983); Stuntz, 93 Mich L Rev at 1073 n 203 (cited in note 216), and have proven too expensive either for the public to assume voluntarily, or for the courts to impose on the public, see, for example, Monell v Dep't of Social Servs, 436 US 658 (1978) (holding that municipalities are liable under USC § 1983 only for civil rights violations resulting from official policy), followed in Board of County Comm'rs v Brown, 117 S Ct 1382 (1997) (holding municipality not liable for excessive force employed by officer hired in negligent disregard of his history of violence).
457. See, for example, Amsterdam, 58 Minn L Rev at 429-30 (cited in note 70); Developments, 101 Harv L Rev at 1497 n 19 (cited in note 38). The "obvious futility of relegating the Fourth Amendment to the protection of other remedies" was at the heart of the Supreme Court's decision to extend the exclusionary rule to state criminal cases. Mapp v Ohio, 367 US 643, 653 (1961). Despite perennial calls for "refurbishing the traditional civilenforcement model," Amar, 107 Harv L Rev at 811 (cited in note 90), the futility remains obvious. The central difficulty is that truly effective civil remedies overdeter if levied against individual officers, see Peter H. Schuck, Suing Government 71-73 (Yale, 1983); Stuntz, 93 Mich L Rev at 1073 n 203 (cited in note 216), and have proven too expensive either for the public to assume voluntarily, or for the courts to impose on the public, see, for example, Monell v Dep't of Social Servs, 436 US 658 (1978) (holding that municipalities are liable under USC § 1983 only for civil rights violations resulting from official policy), followed in Board of County Comm'rs v Brown, 117 S Ct 1382 (1997) (holding municipality not liable for excessive force employed by officer hired in negligent disregard of his history of violence).
458. This last problem would be less important, obviously, had the Court's standing decisions not put injunctions beyond the reach of most plaintiffs alleging police misconduct. See City of Los Angeles v Lyons, 461 US 95 (1983); Rizzo v Goode, 423 US 362 (1976); O'Shea v, Littleton, 414 US 488 (1974).
459. This last problem would be less important, obviously, had the Court's standing decisions not put injunctions beyond the reach of most plaintiffs alleging police misconduct. See City of Los Angeles v Lyons, 461 US 95 (1983); Rizzo v Goode, 423 US 362 (1976); O'Shea v, Littleton, 414 US 488 (1974).
460. This last problem would be less important, obviously, had the Court's standing decisions not put injunctions beyond the reach of most plaintiffs alleging police misconduct. See City of Los Angeles v Lyons, 461 US 95 (1983); Rizzo v Goode, 423 US 362 (1976); O'Shea v, Littleton, 414 US 488 (1974).
461. Kennedy, 101 Harv L Rev at 1416 (cited in note 175).
462. See, for example, David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan L Rev 1283, 1309-11, 1316 (1995). As the Supreme Court itself has recognized, apparent inequity within the criminal justice system does more than deny the victim, in the most basic sense, equal protection of the law, it also powerfully undermines "public confidence in the fairness of our system of justice," and can seriously exacerbate racial divisions. Batson v Kentucky, 476 US 79, 87-88 (1986). See also Rose v Mitchell, 443 US 545, 555 (1979) ("Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice"); notes 203-07 and accompanying text.
463. See, for example, David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan L Rev 1283, 1309-11, 1316 (1995). As the Supreme Court itself has recognized, apparent inequity within the criminal justice system does more than deny the victim, in the most basic sense, equal protection of the law, it also powerfully undermines "public confidence in the fairness of our system of justice," and can seriously exacerbate racial divisions. Batson v Kentucky, 476 US 79, 87-88 (1986). See also Rose v Mitchell, 443 US 545, 555 (1979) ("Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice"); notes 203-07 and accompanying text.
464. See, for example, David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan L Rev 1283, 1309-11, 1316 (1995). As the Supreme Court itself has recognized, apparent inequity within the criminal justice system does more than deny the victim, in the most basic sense, equal protection of the law, it also powerfully undermines "public confidence in the fairness of our system of justice," and can seriously exacerbate racial divisions. Batson v Kentucky, 476 US 79, 87-88 (1986). See also Rose v Mitchell, 443 US 545, 555 (1979) ("Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice"); notes 203-07 and accompanying text.
465. See notes 69-70 and accompanying text.
466. See notes 175-76 and accompanying text.
467. See generally Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (Yale, 1989). Regarding, for example, the role of equality in freedom of speech, see Kenneth L, Karst, Equality as a Central Principle in the First Amendment, 43 U Chi L Rev 20 (1975); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189, 201-07, 247-48 (1983).
468. See generally Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (Yale, 1989). Regarding, for example, the role of equality in freedom of speech, see Kenneth L, Karst, Equality as a Central Principle in the First Amendment, 43 U Chi L Rev 20 (1975); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189, 201-07, 247-48 (1983).
469. See generally Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (Yale, 1989). Regarding, for example, the role of equality in freedom of speech, see Kenneth L, Karst, Equality as a Central Principle in the First Amendment, 43 U Chi L Rev 20 (1975); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189, 201-07, 247-48 (1983).
470. See Sklansky, 47 Stan L Rev at 1312-15, 1320-22 (cited in note 250).
471. The Eighth Amendment ban on $cruel and unusual punishments$ offers a similar opportunity for a context-specific exploration of equitable treatment. To date, unfortunately, the Supreme Court has largely passed up this opportunity as well. See Harmelin v Michigan, 501 US 957 (1991) (finding proportionality of prison sentences largely irrelevant under the Eighth Amendment); McCleskey v Kemp, 481 US 279, 312-21 (1987) (concluding that racial disparities in the application of the death penalty do not violate the Eighth Amendment).
472. The Eighth Amendment ban on $cruel and unusual punishments$ offers a similar opportunity for a context-specific exploration of equitable treatment. To date, unfortunately, the Supreme Court has largely passed up this opportunity as well. See Harmelin v Michigan, 501 US 957 (1991) (finding proportionality of prison sentences largely irrelevant under the Eighth Amendment); McCleskey v Kemp, 481 US 279, 312-21 (1987) (concluding that racial disparities in the application of the death penalty do not violate the Eighth Amendment).
473. There obviously are limits to this sentiment. In different ways, both the exclusionary rule and the recent trend toward fixed, mandatory sentences may reflect a willingness to sacrifice some degree of individualized fairness in the interest of improving criminal justice overall. Significantly, though, both these compromises have been supported in part by appeals to individualized justice, and neither has been promoted as means for redressing inequalities between groups.
474. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 135-79 (Harvard, 1980); Sklansky, 47 Stan L Rev at 1298-99, 1307-08 (cited in note 250 ). Regarding the implications of this phenomenon for free speech law, see Geoffrey R. Stone Content-Neutral Restrictions, 54 U Chi L Rev 46, 72-77 (1987).
475. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 135-79 (Harvard, 1980); Sklansky, 47 Stan L Rev at 1298-99, 1307-08 (cited in note 250 ). Regarding the implications of this phenomenon for free speech law, see Geoffrey R. Stone Content-Neutral Restrictions, 54 U Chi L Rev 46, 72-77 (1987).
476. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 135-79 (Harvard, 1980); Sklansky, 47 Stan L Rev at 1298-99, 1307-08 (cited in note 250 ). Regarding the implications of this phenomenon for free speech law, see Geoffrey R. Stone Content-Neutral Restrictions, 54 U Chi L Rev 46, 72-77 (1987).
477. Ohio v Robinette, 117 S Ct at 421; Florida v Jimeno, 500 US 248, 250 (1991); Pennsylvania v Mimms, 434 US 106, 108-09 (1977); Terry v Ohio, 392 US 1, 19 (1968).
478. Ohio v Robinette, 117 S Ct at 421; Florida v Jimeno, 500 US 248, 250 (1991); Pennsylvania v Mimms, 434 US 106, 108-09 (1977); Terry v Ohio, 392 US 1, 19 (1968).
479. Ohio v Robinette, 117 S Ct at 421; Florida v Jimeno, 500 US 248, 250 (1991); Pennsylvania v Mimms, 434 US 106, 108-09 (1977); Terry v Ohio, 392 US 1, 19 (1968).
480. Ohio v Robinette, 117 S Ct at 421; Florida v Jimeno, 500 US 248, 250 (1991); Pennsylvania v Mimms, 434 US 106, 108-09 (1977); Terry v Ohio, 392 US 1, 19 (1968).
481. Maryland v Wilson, 117 S Ct at 884.
482. See also Robinette, 117 S Ct at 421;
483. Whren, 116 S Ct at 1776;
484. Ornelas v United States, 116 S Ct at 1661.