Taking warrants seriously

Northwestern University Law Review

Volumn 106, Issue 4, 2012, Pages 1609-1674

  Bar Gill, Oren ^a   Friedman, Barry ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84869803395     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (499)

1. Daniel M. Harris, Back to Basics: An Examination of the Exclusionary Rule in Light of Common Sense and the Supreme Court's Original Search and Seizure Jurisprudence, 37 ARK. L. REV. 646, 648-652 (1983).
2. Arguing that the Court went too far in adopting the exclusionary rule.
3. Yale Kamisar, In Defense of the Search and Seizure Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y 119, 123-126 (2003).
4. Defending the exclusionary rule and pointing to its salutary effect on police practices. As to the warrant requirements.
5. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 800-11 (1994).
6. Arguing that the warrant-preference model should be replaced with reasonableness analysis.
7. Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1471-1472 (1985).
8. Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 854 (1994).
9. Supporting the warrant preference as a "triumph of rules over standards."
10. There are a host of articles that argue for strengthening the warrant requirement or limiting warrant exceptions. See sources cited infra note 152. But these articles do not treat warrants effectively as remedies.
11. William J., Stuntz's wonderful Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881 (1991).
12. Is the primary piece that perceives the relationship between warrants and remedies. His, however, is largely a positive account of why (and in what form) we would retain a warrant requirement given certain remedial failings of the exclusionary rule and monetary damages. He does not present anything like the normative argument here. Other authors see the connection between warrants and remedies, though rarely do they recommend turning to warrants in the face of remedial failure.
13. Louis Michael Seidman, Akhil Amar and the (Premature?) Demise of Criminal Procedure Liberalism, 107 YALE. L.J. 2281, 2294-2298 (1998).
14. Akhil Reed Amar, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES (1997).
15. Linking warrants and remedies to the common goal of deterring Fourth Amendment violations.
16. Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 296-298 (1984).
17. Pointing out that the warrant requirement fulfills the same purpose as a remedy.
18. Mapp v. Ohio, 367 U.S. 643, 661-62 (1961) (Black, J., concurring) (arguing that the Fourth Amendment does not require exclusion); People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (arguing against an exclusionary remedy).
19. 131 S. Ct. 2419, 2427 (2011).
20. 131 S. Ct. 2074, 2084-85 (2011).
21. 389 U.S. 347, 357 (1967).
22. Id. at 356-357.
23. S. Ct. 1849, 1858 (2011); see id. at 1864 (Ginsburg, J., dissenting).
24. The latter point is clear by looking at the dates of the scholarly articles arguing for a taut warrant requirement.
25. Phyllis T. Bookspan, Reworking the Warrant Requirement: Resuscitating the Fourth Amendment, 44 VAND. L. REV. 473, 502+520 (1991).
26. Criticizing the Court's attack on the warrant requirement; Bradley, supra note 1, at 1468-70 (discussing a lack of clarity in Fourth Amendment jurisprudence).
27. Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. REV. 1, 29-37 (1991).
28. Proposing replacing the many warrant exceptions with a limited exigencebased model.
29. Telford Taylor, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION (1969).
30. Amar, supra note 1; see also Virginia v. Moore, 553 U.S. 164, 170 (2008) (citing Amar's Fourth Amendment First Principles, supra note 1).
31. U.S. CONST. amend. IV.
32. TAYLOR, supra note 10, at 21.
33. Amar, supra note 1, at 772-780.
34. For examples of the Court accepting all or part of this reasoning, see, e.g., Samson v. California, 547 U.S. 843, 852 (2006) (finding suspicionless searches of parolees reasonable), and Wyoming v. Houghton, 526 U.S. 295, 306-07 (1999) (holding that warrantless search for contraband was reasonable). For criticism of the Taylor-Amar thesis.
35. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 571-90 (1999).
36. Arguing that history does not support the reasonableness framework.
37. Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 228-229 (1993).
38. Arguing that the warrant requirement better serves the Fourth Amendment's purpose). One of us (Friedman) is writing a book on the Fourth Amendment that, among other things, challenges Justice Scalia's version of the Taylor-Amar thesis.
39. Stuntz, supra note 2, at 887-888.
40. Ken Thomas, Gov't Urges 'No Refusal' Policy on Drunken Driving, NBCNEWS.COM (Dec. 13, 2010, 3:44 PM), http://www.msnbc.msn.com/id/40646098/ns/us_news-crime_and_courts/t/govturges-no-refusal-policy-drunken-driving/.
41. The literature on the use of technology to obtain warrants is blossoming.
42. Donald L. Beci, Fidelity to the Warrant Clause: Using Magistrates, Incentives, and Telecommunications Technology to Reinvigorate Fourth Amendment Jurisprudence, 73 DENV. U. L. REV. 293, 296-299 (1996).
43. Arguing that technology makes it easier to obtain warrants.
44. David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 VA. L. REV. 1229, 1246-1250 (2002)
45. Discussing benefits of telephonic warrants); Slobogin, supra note 9, at 32-33 (discussing increasing useof telephonic warrants.
46. FED. R. CRIM. P. 4(d) (amending Rule 4 to allow a magistrate to issue a warrant 'based on information communicated by telephone or other reliable electronic means'). Other amendments to Rule 4.1 provide that a magistrate may file a duplicate copy received electronically as the original and for the transfer and modification of warrants via electronic communication.
47. See FED. R. CRIM. P. 4.1(b); see also FED. R. CRIM. P. 4.1(b)(4) (providing that issuance of a warrant based on information received by 'reliable electronic means' can serve as an original); FED. R. CRIM. P. 4.1(c) (providing that absent bad faith, evidence from such a warrant may not be challenged based on the manner of issuance). For a summary of changes to the rules, see Letter from Comm. on Rules of Practice & Procedure of the Judicial Conference of the U.S. to Chief Justice John G. Roberts (Dec. 16, 2010), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Supreme Court 2011/Summary_of_Amendments.pdf.
48. Sarah Lundy, Officers Connect to Judges with Skype, ORLANDO SENTINEL, Mar. 29, 2011, at B2.
49. Stuntz, supra note 2, at 908 (proposing adoption of telephonic warrant procedures).
50. Erica Goode, Video, a New Tool for the Police, Poses New Legal Issues, Too, N.Y. TIMES, Oct. 12, 2011, at A14.
51. Stuntz, supra note 2, at 917.
52. Payton v. New York, 445 U.S. 573, 587 (1980) (distinguishing warrantless arrests from warrantless searches).
53. 387 U.S. 523, 532 (1967).
54. Illinois v. Lidster, 540 U.S. 419, 427-28 (2004) (excepting information-seeking highway checkpoints from the warrant requirement); Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 454-55 (1990) (excepting drunk-driving checkpoints).
55. Gerard E. Lynch, Why Not a Miranda for Searches?, 5 OHIO ST. J. CRIM. L. 233, 235 (2007)
56. 'Next to the pervasive automobile exception to the warrant requirement, consent is probably the leading justification offered for warrantless searches, and consent is unquestionably the leading rationale for searches undertaken without particularized probable cause or reasonable suspicion.'.
57. Many commentators doubt that the Court's consent jurisprudence actually comports with a satisfying conception of voluntariness or meaningful freedom to decide. See, e.g., Ohio v. Robinette, 519 U.S. 33, 46-48 (1996) (Stevens, J., dissenting) (noting that most people do not feel free to walk away from police officers).
58. Ric Simmons, Not "Voluntary" but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 IND. L.J. 773, 774 (2005).
59. "The idea that [the Drayton] defendants acted voluntarily is at once absurd, meaningless, and irrelevant under traditional Fourth Amendment jurisprudence.".
60. Marcy Strauss, Reconstructing Consent, 92 J. CRIM. L. & CRIMINOLOGY 211, 216, 221 (2001).
61. Sccusing the Supreme Court of ignoring questions of what voluntariness means when discussing consent.
62. Daniel R. Williams, Misplaced Angst: Another Look at Consent-Search Jurisprudence, 82 IND. L.J. 69, 77 (2007).
63. Calling consent a "myth" of voluntariness.
64. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986); Owen v. City of Independence, 445 U.S. 622, 652-53 (1980) (discussing the compensatory rationale for damages in constitutional torts).
65. David Rudovsky, Running in Place: The Paradox of Expanding Rights and Restricted Remedies, 2005 U. ILL. L. REV. 1199, 1225-1226.
66. Pointing to a compensatory rationale for damages.
67. Mapp v. Ohio, 367 U.S. 643, 659 (1961) ('[T]here is another consideration-the imperative of judicial integrity. The criminal goes free, if he must, but it is the law that sets him free.' (citations and internal quotation marks omitted).
68. Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 130 (1992)
69. "The exclusionary rule gives the impression that the court system is as clean as clean can be.".
70. Herring v. United States, 555 U.S. 135, 141 (2009) ('Instead we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future.'); United States v. Peltier, 422 U.S. 531, 539 (1975) (basing the decision to exclude evidence in part on its likely deterrent effect).
71. Richard A. Posner, Rethinking the Fourth Amendment, 1981 SUP. CT. REV. 49, 54.
72. "[D]eterrence is the raison d'être of the rule.".
73. John E. Calfee & Richard Craswell, Some Effects of Uncertainty on Compliance with Legal Standards, 70 VA. L. REV. 965, 987 (1984).
74. Discussing effects of uncertainty on choices between levels of care.
75. Richard Craswell & John E. Calfee, Deterrence and Uncertain Legal Standards, 2 J.L. ECON. & ORG. 279, 285-286 (1986).
76. Discussing effect of uncertainty on legal rules.
77. infra Part I.B-I.C.
78. Kim Forde-Mazrui, Ruling Out the Rule of Law, 60 VAND. L. REV. 1497, 1517 (2007)
79. Discussing police discretion and vague standards.
80. William C. Heffernan & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. MICH. J.L. REFORM 311, 345 (1991).
81. Discussing the vague standards in the law governing police conduct); Rudovsky, supra note 26, at 1223-24 (discussing the combination of vague standards and the good faith exception to municipal liability).
82. William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1028 & n.50, 1074-1077 (1995).
83. Discussing vagueness in criminal procedure as it relates to discretion.
84. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) ('[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment....' (quoting Katz v. United States, 389 U.S. 347, 357 (1967))).
85. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. ILL. L. REV. 363, 375. & n.39.
86. Enumerating exceptions and arguing that the exceptions have turned the Fourth Amendment into 'swiss cheese'. Compare Bradley, supra note 1, at 1473-74 (finding over twenty exceptions to the warrant requirement), with Bookspan, supra note 9, at 501-02 (counting fifteen exceptions).
87. Chimel v. California, 395 U.S. 752, 754-61 (1969) (reviewing the scope of the search incident to a lawful arrest exception from Weeks v. United States, 232 U.S. 383 (1914), onward, and returning to a narrower construction).
88. Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999) (looking first to the common law and then reasonableness to assess whether governmental action violates the Fourth Amendment).
89. United States v. Carroll Towing Co., 159 F.2d 169, 174 (2d Cir. 1947) (implementing reasonableness using a cost-benefit calculus, which is thought to facilitate deterrence).
90. Georgia v. Randolph, 547 U.S. 103, 125-27 (2006) (Breyer, J., concurring) (finding the search unconstitutional because it was targeted at evidence, the party was present and objected, there was no apparent danger of evidence destruction, and the officers could have sought a warrant). 38 531 U.S. 32, 44 (2000) (requiring a warrant because the checkpoint had a 'crime control' purpose).
91. 540 U.S. 419, 423 (2004) (excepting a checkpoint with an informational purpose).
92. The remedy of ex post exclusion, however, does push systematically towards greater uncertainty. See infra Part I.B.1 (describing ex post bias).
93. Ohio v. Robinette, 519 U.S. 33, 39 (1996) (supplanting the Ohio Supreme Court's bright-line rule with an examination of the totality of the circumstances); Florida v. Bostick, 501 U.S. 429, 437 (1991) (remanding the case for examination of the totality of the circumstances).
94. Sources cited supra note 29. The line between moderate uncertainty, which leads to overdeterrence, and extreme uncertainty, which results in underdeterrence, is not a clear one. So how do we know that, in the Fourth Amendment context, the line has been crossed? The answer harkens back to the broad recognition that deterrence is not working well in this area. The failure of deterrence, we argue, suggests that the degree of uncertainty is extreme and that sanctions are ineffective.
95. Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 RAND J. ECON. 271, 271-272 (1984).
96. Describing the relative efficiency of ex post remedies as compared to ex ante liability); Stuntz, supra note 2, at 886-88 (explaining that ex ante review is rare because of the high cost relative to ex post remedies).
97. See Amar, supra note 1, at 796 ('The criminal defendant... is often unrepresentative of the larger class of law-abiding citizens, and his interests regularly conflict with theirs.'); Slobogin, supra note 33, at 403 ('[U]nder the exclusionary regime, the Fourth Amendment is virtually always associated with a criminal; only people who have been found in possession of evidence of a crime seek exclusion.').
98. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).
99. Amar, supra note 1, at 799 ('The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens. Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated.').
100. United States v. Bayless, 913 F. Supp. 232, 234 (S.D.N.Y. 1996).
101. Alison Mitchell, Clinton Defends His Criticism of a New York Judge's Ruling, N.Y. TIMES, Apr. 3, 1996, at A12.
102. Discussing President Clinton and Senator Dole's criticism of Judge Baer's decision to suppress evidence.
103. By definition exclusion implies that there is some evidence to exclude. We are not the first commentators to note the effect this might have on the law. See, e.g., Amar, supra note 1, at 799.
104. Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665, 736 (1970)
105. Pointing out that exclusion can only benefit the guilty.
106. Guido Calabresi, The Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y 111, 112 (2003).
107. 'The hydraulic effect, as Chief Judge John M. Walker, Jr. has sometimes called it, or the slippery slope, means that courts keep expanding what is deemed a reasonable search or seizure.' (footnote omitted).
108. Rare are the cases where evidence is available to definitively prove the police are lying. However, commentators have uncovered evidence in a variety of forms. See Orfield, supra note 27 (quantifying lying by police in the Chicago courts).
109. Melanie D. Wilson, An Exclusionary Rule for Police Lies, 47 AM. CRIM. L. REV. 1, 5-12 (2010)
110. Categorizing and summarizing the available evidence.
111. CITY OF NEW YORK, COMM'N TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION & THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEP'T, COMMISSION REPORT 36 (1994), available at http://www.parc.info/client_files/Special Reports/4 - Mollen Commission - NYPD.pdf ('Several officers also told us that the practice of police falsification in connection with such arrests is so common in certain precincts that it has spawned its own word: 'testilying."); see also Oaks, supra note 48, at 739-40 ('[O]fficers will 'twist' the facts in order to prevent suppression of evidence and release of persons whom they know to be guilty.... [T]he policeman is 'programmed to respond so as to legalize an arrest.").
112. Calabresi, supra note 49, at 113 ('But again, the question of fact as to whether the police are lying, or whether the evidence was properly obtained, is often close. If it is a close question and a judge finds that the police did not tell the truth, then-given the exclusionary rule-a murderer or rapist will be released. As a result, when in doubt a judge will say, 'Maybe they are telling the truth.").
113. Daryl J. Levinson, Aimster and Optimal Targeting, 120 HARV. L. REV. 1148, 1150-1151 (2007).
114. Providing background on the difference between direct and indirect sanctions.
115. Lewis A. Kornhauser, An Economic Analysis of the Choice Between Enterprise and Personal Liability for Accidents, 70 CALIF. L. REV. 1345, 1346 (1982).
116. Describing indirect and direct sanctioning regimes; see also Levinson, supra note 53, at 1151 (describing the conditions necessary for indirect liability to be efficient).
117. Alan O. Sykes, The Economics of Vicarious Liability, 93 YALE L.J. 1231 (1984).
118. Describing the incentives created by indirect sanctions like vicarious liability.
119. Jennifer Arlen & Reinier Kraakman, Controlling Corporate Misconduct: An Analysis of Corporate Liability Regimes, 72 N.Y.U. L. REV. 687 (1997).
120. Jennifer Arlen, Corporate Criminal Liability: Theory and Evidence, in RESEARCH HANDBOOK ON THE ECONOMICS OF CRIMINAL LAW 144 (Alon Harel & Keith N. Hylton eds., 2012).
121. Jonathan Rubinstein, CITY POLICE 45 (1973).
122. Describing how statistics are calculated before final disposition, making the arrest more important to internal performance reviews than the outcome.
123. Jerome H. Skolnick, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 150 (4th ed. 2011).
124. Explaining the importance of clearance rates in internal performance reviews.
125. Milton A. Loewenthal, Evaluating the Exclusionary Rule in Search and Seizure, 49 UMKC L. REV. 24, 33 (1980).
126. Noting the importance of arrest records in determining promotions); Slobogin, supra note 33, at 378 (noting that arresting officers bear little responsibility for prosecutorial outcomes).
127. Calabresi, supra note 49, at 117 ('[E]xcluding evidence fails to affect the 'cowboy' cop very much. The cowboy has gathered the evidence, arrested the criminals, and received all the publicity: 'I've caught the perps. I did my job...."); infra notes 195-203 and accompanying text.
128. Slobogin, supra note 33, at 378.
129. Jack R. Greene & Ralph B. Taylor, Community-Based Policing and Foot Patrol: Issues of Theory and Evaluation, in COMMUNITY POLICING: RHETORIC OR REALITY 195, 197 Jack R. Greene & Stephen D. Mastrofski eds., 1988 (discussing uncertainties in the results of empirical studies on community policing).
130. Dan M. Kahan & Tracey L. Meares, The Coming Crisis Of Criminal Procedure, 86 GEO. L.J. 1153, 1164 (1998).
131. Arguing that community policing deserves some of the credit for declining crime rates during the 1990s.
132. Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551, 573-575 (1997).
133. Summarizing the arguments linking community policing to crime rates.
134. Mary Ann Wycoff, The Benefits of Community Policing: Evidence and Conjecture, in COMMUNITY POLICING, supra, at 103+107-111.
135. Finding a reduction in fear and improved relations between police and community members.
136. Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749, 755 (2003).
137. Discussing the separation of police and prosecutors into a "coordinate mode of organization" in America.
138. Mirjan R. Damaška, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL PROCESS 44 (1986).
139. Peter F. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 AM. B. FOUND. RES. J. 585, 596.
140. Describing low success rates for motions to suppress.
141. Orfield, supra note 27, at 116-18 (noting that officers tend to follow the rules in important 'heater' cases because they know the stakes are so high, but that the opposite is true for minor crimes, such as possession).
142. Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 879 & nn.42-43 (2009).
143. Discussing overcharging and the plea bargaining process.
144. Amar, supra note 1, at 798 (arguing that money damages are preferable to exclusion).
145. Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937, 979-980 (1983).
146. Posner, supra note 28, at 55-56 (arguing that damages are a more efficient remedy than exclusion).
147. Richard A. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 WASH. L. REV. 635, 639 (1982).
148. Arguing that damages can be calibrated according to the circumstances of the case.
149. Jeffrey Standen, The Exclusionary Rule and Damages: An Economic Comparison of Private Remedies for Unconstitutional Police Conduct, 2000 BYU L. REV. 1443, 1473.
150. Arguing that damages can be determined based on the type of violation.
151. This is not actually the case. If the function of the exclusionary rule is deterrence, then the police also would be deterred from intruding into the lives of those who do not possess evidence of criminality and who are not in fact criminals. Still, the exclusionary rule appears, at first glance, to only benefit criminals.
152. Supra notes 64-65 and accompanying text.
153. Supra notes 53-55 and accompanying text.
154. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50 & n.16 (1998).
155. Describing personal interviews with police officers who could not recall an instance in which an officer was not indemnified.
156. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 353 (2000).
157. Noting the "near-universal" practice of indemnifying officers.
158. Oaks, supra note 48, at 718 (discussing the inability of money damages to account for the injury suffered by search victims); Stuntz, supra note 2, at 900-01 (describing the injury in illegal search cases as 'complicated and almost wholly subjective' and notoriously difficult to value); see also Dillon v. Legg, 441 P.2d 912, 919-21 (Cal. 1968) (imposing strict requirements to limit the scope of potential liability for purely emotional harms).
159. Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 170 (1992).
160. Discussing the strict limitations on recovery for emotional harm in tort law.
161. McCabe v. Mais, 580 F. Supp. 2d 815, 832 (N.D. Iowa 2008) ('I was humiliated, and I felt violated. I felt as though I had lost control of my own body. I couldn't imagine many things that would be worse....'), aff'd in part, rev'd in part sub nom. McCabe v. Parker, 608 F.3d 1068 (8th Cir. 2010); Wright v. United States, 963 F. Supp. 7, 18 (D.D.C. 1997) ('In this case, both Michelle and Justo Cruz testified that they suffered from recurrent nightmares for several weeks; and Justo Cruz described how, for a while, he was constantly nervous and easily startled by loud noises.').
162. Levinson, supra note 69, at 372 (footnotes omitted).
163. Id.
164. Supra notes 70-71 and accompanying text.
165. Steiker, supra note 1, at 848-50 (noting the substantial statutory reforms necessary to make a damages scheme workable). Any statutory reform would also need to consider practical problems as well. See Stuntz, supra note 2, at 910 (discussing the 'insoluble problems' with a damages scheme).
166. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1749-1753 (1991).
167. Discussing the heightened requirements to defeat qualified immunity in Bivens actions after Harlow v. Fitzgerald).
168. Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 679-680 (1987)
169. Presenting empirical evidence on the low rate of success for plaintiffs in constitutional tort actions.
170. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011); Pearson v. Callahan, 555 U.S. 223, 231 (2009); Anderson v. Creighton, 483 U.S. 635, 638-39 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
171. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009).
172. Jeffries, supra note 69, at 70 (1998) (explaining that vagaries in constitutional doctrine make it inherently difficult to prove police action was unreasonable).
173. John C. Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 862 (2010).
174. Describing the many potentially exculpatory considerations in the reasonableness inquiry.
175. At a minimum, indemnity is common. Most scholars would consider this to be an understatement.
176. Richard Emery & Ilann Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 FORDHAM URB. L.J. 587, 587-588 (2000).
177. Describing firsthand experience suing New York City police officers, who were always indemnified; Jeffries, supra note 69, at 50 (describing interviews with officers who could not recall an instance in which officers were not indemnified); Levinson, supra note 69, at 353 (describing indemnity as 'near-universal'); Project, Suing the Police in Federal Court, 88 YALE L.J. 781, 810 n.158, 811 (1979) (failing to find a single instance in which a Connecticut officer was not indemnified). Nevertheless, the evidence is somewhat sparse and some do disagree.
178. Peter H. Schuck, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 86, 229-230 nn.23-28 (1983).
179. Arguing that indemnity is far from certain.
180. Many state and municipal indemnification statutes exempt intentional or willful misconduct. See, e.g., N.Y. GEN. MUN. LAW § 50-k (McKinney 2007); N.Y. PUB. OFF. LAW § 17(2)(a) (McKinney 2008 & Supp. 2012); Ruiz v. Herrera, 745 F. Supp. 940 (S.D.N.Y. 1990); Karas v. Snell, 142 N.E.2d 46 (Ill. 1957); Bearden v. City of Boulder City, 507 P.2d 1034 (Nev. 1973).
181. Supra notes 64-65 and accompanying text.
182. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978) (requiring the violation to be caused by a municipal policy); Owen v. City of Independence, 445 U.S. 622, 633 (1980) (elaborating on Monell's policy requirement).
183. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) ('Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority....' (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986))); Pembaur, 475 U.S. at 483.
184. Praprotnik, 485 U.S. at 132 (Brennan, J., concurring) (arguing that the majority's test of municipal policy is 'unduly narrow and unrealistic'); see also McMillian v. Monroe Cnty., 520 U.S. 781, 802 (1997) (5-4 decision) (Ginsburg, J., dissenting) (arguing that the Court's test is overly rigid and difficult to satisfy); Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 433-36 (1997) (5-4 decision) (Breyer J., dissenting) (arguing that post-Monell decisions on municipal liability should be revisited).
185. Hans v. Louisiana, 134 U.S. 1, 13 (1890) ('It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996) ('For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States 'was not contemplated...." (quoting Hans, 134 U.S. at 15)).
186. See Quern v. Jordan, 440 U.S. 332, 342 (1979) (holding that a clear showing of congressional purpose is necessary to override sovereign immunity under Section Five of the Fourteenth Amendment).
187. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67 (1989); see also Edelman v. Jordan, 415 U.S. 651, 675-76 (1974) ('But it has not heretofore been suggested that § 1983 was intended to create a waiver of a State's Eleventh Amendment immunity....').
188. Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. REV. 785, 787 (1970).
189. Discussing fear of suing the police.
190. Tracey Maclin, When the Cure for the Fourth Amendment Is Worse than the Disease, 68 S. CAL. L. REV. 1, 62 (1994).
191. Discussing public preconceptions of police behavior); Posner, supra note 28, at 62 (noting that fear of reprisal may deter individuals from bringing tort claims for Fourth Amendment violations.
192. Md. State Conference of NAACP Branches v. Md. Dep't of State Police, 72 F. Supp. 2d 560 (D. Md. 1999) (class action alleging racial profiling in highway stops in which the lead plaintiff was the President of the Maryland ACLU).
193. Press Release, ACLU, Landmark Settlement Reached with Maryland State Police In "Driving While Black" Case (Apr. 2, 2008), available at http://www.aclu.org/racial-justice/landmark-settlement-reached-maryland-state-police-driving-while-black-case.
194. 42 U.S.C. § 1988(b) (2006) (providing for fee shifting in Section 1983 suits.
195. Margaret H. Lemos, Special Incentives to Sue, 95 MINN. L. REV. 782, 790 (2011).
196. Reviewing feeshifting and contingency mechanisms.
197. Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 CORNELL L. REV. 719, 745 (1988).
198. Testing incentives created by contingency and feeshifting provisions.
199. Maclin, supra note 89, at 62 (pointing out that juries tend to sympathize with the police quoting).
200. Donald Dripps, Beyond the Warren Court and Its Conservative Critics: Toward a Unified Theory of Constitutional Criminal Procedure, 23 U. MICH. J.L. REFORM 591, 629 (1990).
201. L. Timothy Perrin et al., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 738 (1998).
202. "It is commonly recognized that juries will believe law enforcement officials before relying on a plaintiff's account.".
203. S. Shavell, The Judgment Proof Problem, 6 INT'L REV. L. & ECON. 45 (1986).
204. Discussing the skewed incentives created by judgment-proof defendants); see also Rudovsky, supra note 26, at 1229 (pointing out that officers generally have few assets and that, in egregious cases, states refuse to indemnify, making the defendant judgment proof and leaving plaintiffs uncompensated).
205. Heffernan and Lovely, supra note 31, at 324-25 (arguing that indirect sanctions tend to underdeter the police); Levinson, supra note 53, at 1150-51 (describing the difficulties in making indirect sanctions effective).
206. Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1033 (2010).
207. Pointing out that lawsuits put minimal financial pressure on police departments. Often the damages do not come out of the police department budget at all, further reducing their deterrent effect.
208. Marc L. Miller & Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52 BUFF. L. REV. 757, 781-782 (2004).
209. Noting that damages are typically paid by the municipality.
210. Schwartz, supra note 95, at 1041-1053.
211. Schuck, supra note 80, at 125.
212. Levinson, supra note 69, at 357.
213. Id. at 350.
214. Id. at 367-372.
215. Schwartz, supra note 95, at 1066-1067 (discussing the lack of connection between trial outcomes and disciplinary sanctions).
216. Heffernan & Lovely, supra note 31, at 363 (describing sanctions as a cost of business for police departments).
217. Levinson, supra note 69, at 368.
218. Levinson, supra note 69, at 367-72; Maclin, supra note 89, at 31 (describing a public opinion poll that says, '62 percent of those questioned said they would be willing to give up 'a few of the freedoms we have in this country' to significantly reduce illegal drug use'.
219. Richard Morin, Many in Poll Say Bush Plan Is Not Stringent Enough: Mandatory Drug Tests, Searches Backed, WASH. POST, Sept. 8, 1989, at A1)
220. Steiker, supra note 1, at 850 (arguing that "average" citizens are most affected by crime and therefore most likely to approve of police "overreaching").
221. Civil Rights Bureau, OFFICE OF THE ATT'Y GEN. OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT'S "STOP & FRISK" PRACTICES: A REPORT TO THE PEOPLE OF THE STATE OF NEW YORK 111 (1999).
222. Hereinafter NYPD STOP & FRISK REPORT] (summarizing the stop and frisk practices in New York City and showing that only one out of every nine stops led to an arrest).
223. Paul Crotty, Speech, The Corporation Counsel's View of Independent Oversight of the Police Department, 40 N.Y.L. SCH. L. REV. 23, 31 (1995).
224. Describing the hundreds of internal affairs bureau agents focused on corruption.
225. Annette Gordon-Reed, Watching the Protectors: Independent Oversight of Municipal Law Enforcement Agencies, 40 N.Y.L. SCH. L. REV. 87, 88-90 (1995)
226. Describing New York City's focus on corruption within the police department.
227. Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department "Pattern or Practice" Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3, 30-35 (2003).
228. Describing modern early-intervention systems that focus on use-of-force reporting and implementation of use-of-force policies.
229. Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV. 453, 504-505 (2004)
230. Discussing the systemic flaws that make most internal affairs bureaus ineffective.
231. Schwartz, supra note 95, at 1066 (presenting data showing that almost 90% of sheriffs' departments do not proactively gather information on lawsuits or engage in meaningful analysis).
232. Samuel Walker, CITIZEN REVIEW RESOURCE MANUAL (1995).
233. N.Y. CIVIL LIBERTIES UNION FOUND., CIVILIAN REVIEW OF POLICING: A CASE STUDY REPORT 9-13 (1993) (observing that a range of impediments have weakened civilian-oversight agencies).
234. SKOLNICK, supra note 56, at 227.
235. Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How Civilian Oversight of the Police Should Function and How It Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 2-3 (2009).
236. David Brereton, Evaluating the Performance of External Oversight Bodies, in CIVILIAN OVERSIGHT OF POLICING: GOVERNANCE, DEMOCRACY AND HUMAN RIGHTS 105, 111-112. (Andrew J. Goldsmith & Colleen Lewis eds., 2000) (discussing results that show civilian review boards do not perform better than their internal counterparts).
237. Liqun Cao & Bu Huang, Determinants of Citizen Complaints Against Police Abuse of Power, 28 J. CRIM. JUST. 203, 210 (2000).
238. Pointing to implementation problems with civilian review boards.
239. Sean Hecker, Race and Pretextual Traffic Stops: An Expanded Role for Civilian Review Boards, 28 COLUM. HUM. RTS. L. REV. 551, 594 (1997)
240. Discussing the history of civilian review and its focus on violence.
241. Samuel Estreicher & Daniel P. Weick, Opting for a Legislative Alternative to the Fourth Amendment Exclusionary Rule, 78 UMKC L. REV. 949, 951-953 (2010).
242. Perrin et al., supra note 92.
243. Laurie L. Levenson, Administrative Replacements: How Much Can They Do?, 26 PEPP. L. REV. 879, 880-885 (1999).
244. Describing the practical obstacles to any administrative remedy.
245. Supra notes 94-103 and accompanying text.
246. Orfield, supra note 27, at 125-26 (discussing survey responses from police officers supporting the rule); Perrin et al., supra note 92, at 732 (noting survey data that shows police officers favor exclusion by comparison to other remedies); see also Kamisar, supra note 1, at 137-38 (summarizing studies that show police prefer exclusion to other remedies).
247. Loewenthal, supra note 56, at 30-40.
248. Orfield, supra note 27, at 80-82 (discussing educational impact of exclusion on the police).
249. Calabresi, supra note 49, at 113 (explaining that judges feel pressure to justify admitting damning evidence, leading to precedents that gradually complicate the law).
250. Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL STUD. 357 (1984)
251. Discussing the judgment-proof problem). Both drivers and doctors must obtain insurance, but insurance, while guaranteeing compensation for victims, cannot fully solve the deterrence problem.
252. Steven Shavell, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987).
253. Stuntz, supra note 2, at 886-887.
254. Some pharmaceutical companies have used the bankruptcy code as a shield against massive class actions. For instance, Dow Corning entered Chapter 11 in the face of billions of $s in potential liability.
255. Barnaby J. Feder, Dow Corning in Bankruptcy over Lawsuits, N.Y. TIMES, May 16, 1995, at A1.
256. Stuntz, supra note 2, at 901-902 (discussing challenges to accurately calculating damages).
257. Id. at 887-888.
258. Steven Shavell, FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW 93 (2004) (discussing the role of "direct regulation").
259. 333 U.S. 10, 13-14 (1948).
260. Ronald A. Cass, Damage Suits Against Public Officers, 129 U. PA. L. REV. 1110, 1140 & n.120 (1981).
261. Arguing that police officers' incentives are skewed toward engaging in illegal activity.
262. Arizona v. Evans, 514 U.S. 1, 11 (1995) (noting that exclusion is not directed at magistrates because they are not 'inclined' to ignore the Fourth Amendment); United States v. Leon, 468 U.S. 897, 917 (1984) (discussing differences between motivations of magistrates and police officers). Of course, this can be complicated by how magistrates are appointed. Some, for example, may be judges who stand for election. If so, how they respond to warrant requests may depend, for example, on whether they feel more beholden to the defense bar or prosecutors. This is part of the reason we insist on random assignment.
263. Since Leon, there has been a plethora of scholarship focused on rubber stamp magistrates.
264. Richard van Duizend et al., THE SEARCH WARRANT PROCESS: PRECONCEPTIONS, PERCEPTIONS, PRACTICES 94-102 (1985).
265. Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. REV. 1173, 1199-1201 (1987).
266. The first time the term 'rubber stamp' actually appears in the Court's opinions in reference to magistrates is in Aguilar v. Texas, in which it immediately follows the quote from Johnson. 378 U.S. 108, 111 (1964). The concept comes up again in Lo-Ji Sales, Inc. v. New York in the context of a town justice who took part in the search, essentially becoming 'an adjunct law enforcement officer.' 442 U.S. 319, 326-27 (1979). Finally, Leon uses the term in a similar fashion to describe a magistrate who does not scrutinize the evidence but rather acts as if he were a police officer. See 468 U.S. at 914-15.
267. Commentators note both concerns. See, e.g., Goldstein, supra note 122, at 1199-1200 (using the term 'rubber-stamp magistrates' to refer not only to magistrates who are not neutral but also to magistrates who fail to scrutinize affidavits and who merely accept their conclusions).
268. Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 GEO. L.J. 19, 34 & n.63 (1988).
269. Using the term 'rubber stamp' to refer not only to magistrates who are not 'neutral and detached' but also to magistrates who subject the warrant application to only 'perfunctory review'.
270. Illinois v. Gates, 462 U.S. 213, 239 (1983) ('In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.').
271. van Duizend et al., supra note 122.
272. Paul Sutton, The Fourth Amendment in Action: An Empirical View of the Search Warrant Process, 22 CRIM. L. BULL. 405, 421 (1986).
273. This sort of criticism is frequently leveled at the special court that issues warrants under the Foreign Intelligence Surveillance Act (FISA). See Note, Shifting the FISA Paradigm: Protecting Civil Liberties by Eliminating Ex Ante Judicial Approval, 121 HARV. L. REV. 2200, 2205-06 (2008) (citing evidence that the FISA court rejected just five applications through 2006). But that court only receives applications from a special office within the Department of Justice, and the available evidence suggests that the office is extremely careful in what it brings to the court in the first place.
274. Stewart A. Baker, SKATING ON STILTS: WHY WE AREN'T STOPPING TOMORROW'S TERRORISM 45-47 (2010).
275. Political scientists call this effect "anticipated reaction" or "rational anticipation.".
276. William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 29 (1994)
277. Discussing strategic interactions between coordinate branches of government.
278. Terri Jennings Peretti, IN DEFENSE OF A POLITICAL COURT 145 (1999) (discussing the Court's consideration of anticipated reactions in its decisionmaking).
279. Some commentators have attempted to document this phenomenon, but the data is limited.
280. Van Duizend et al., supra note 122, at 102.
281. Laurence A. Benner & Charles T. Samarkos, Searching for Narcotics in San Diego: Preliminary Findings from the San Diego Search Warrant Project, 36 CAL. W. L. REV. 221 (2000).
282. Describing results of a study of warrant applications in San Diego.
283. Kimberly Jade Norwood, Shopping for a Venue: The Need for More Limits on Choice, 50 U. MIAMI L. REV. 267, 299 (1996).
284. 'Courts consistently treat judge-shopping as an impermissible form of shopping for justice.'. Sanctions for lawyers found to be judge-shopping vary. See, e.g., Lane v. City of Emeryville, No. 93-16646, 1995 U.S. App. LEXIS 11629 (9th Cir. Mar. 17, 1995) (attorney sanctioned under Fed. R. Civ. P. 11 for scheme involving dismissing and refiling complaints to procure a more favorable judge); Standing Comm. on Discipline v. Yagman, 856 F. Supp. 1384, 1393 (C.D. Cal. 1994) (attorney suspended, fined, and ordered to perform twenty-five hours of pro bono work for filing five identical complaints in hopes of choosing a favorable judge), rev'd, 55 F.3d 1430 (9th Cir. 1995).
285. The random assignment process used in most federal courts serves, in part, to prevent this sort of judgeshopping. See United States v. Mavroules, 798 F. Supp. 61, 61 (D. Mass. 1992) ('This case was assigned to me through the blind, random draw selection process utilized in all cases by this court. That procedure... prevents judge shopping by any party, thereby enhancing public confidence in the assignment process.').
286. In some cases, police officers may apply for a warrant even when they expect the application to be denied to shift blame to the magistrate if the suspect commits a crime that could have been avoided by the search or seizure. We abstract from this possibility.
287. Philip E. Tetlock, Linda Skitka & Richard Boettger, Social and Cognitive Strategies for Coping with Accountability: Conformity, Complexity, and Bolstering, 57 J. PERSONALITY & SOC. PSYCHOL. 632, 638 (1989).
288. Finding that decisionmakers conform to the ideological orientation of those to whom they are accountable.
289. Lon L. Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71 HARV. L. REV. 630, 636 (1958).
290. Cass, supra note 120, at 1140.
291. Barry Loveday, Managing Crime: Police Use of Crime Data as an Indicator of Effectiveness, 28 INT'L J. SOC. L. 215, 216 (2000).
292. JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES (Daniel Kahneman, Paul Slovic & Amos Tversky eds., 1982) (discussing various forms of cognitive bias, including insensitivity to sample size and predictability).
293. Linda Babcock, George Loewenstein & Samuel Issacharoff, Creating Convergence: Debiasing Biased Litigants, 22 LAW & SOC. INQUIRY 913 (1997).
294. Considering counterarguments has been shown to reduce the hindsight bias and the overconfidence bias.
295. Baruch Fischhoff, Debiasing, in JUDGMENT UNDER UNCERTAINTY, supra note 134, at 422, 427-431 (discussing hindsight bias).
296. Asher Koriat, Sarah Lichtenstein & Baruch Fischhoff, Reasons for Confidence, 6 J. EXPERIMENTAL PSYCHOL.: HUM. LEARNING & MEMORY 107, 113-114 (1980)
297. Discussing overconfidence bias. This is not to say that considering counterarguments always reduces all forms of bias.
298. Neil D. Weinstein & William M. Klein, Resistance of Personal Risk Perceptions to Debiasing Interventions, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 313, 313-323. (Thomas Gilovich, Dale Griffin, & Daniel Kahneman eds., 2002) (asking subjects to consider risk factors related to negative outcomes and suggesting reasons that negative outcomes that might occur do not reduce the optimism bias).
299. Jennifer S. Lerner & Philip E. Tetlock, Accountability and Social Cognition, in 1 ENCYCLOPEDIA OF HUMAN BEHAVIOR 1, 1-10 (1994).
300. Explaining that accountability reduces overconfidence and the fundamental attribution bias.
301. Philip E. Tetlock, Accountability and the Perseverance of First Impressions, 46 SOC. PSYCHOL. Q. 285, 290-291 (1983).
302. Finding that accountable decisionmakers were less vulnerable to belief perseverance-the primacy effect-and were more willing to consider new evidence that challenged their initial beliefs). But see Tetlock et al., supra note 131, at 638 (finding that decisionmakers who are committed to a certain position focus on justifying their prior position).
303. The deliberation literature argues that deliberation reduces bias and irrationality, thus leading to better outcomes. Because deliberation requires individuals to convince each other, it filters out bias, prejudice, and irrational motivations.
304. Joshua Cohen, Deliberation and Democratic Legitimacy, in DEMOCRACY 87, 95 (David Estlund ed., 2002).
305. Id. at 91, 94 (arguing that, when deliberation requires justifying a decision to others who have different perspectives, it is likely to require appeals to the common good, leading to a preference for the socially desirable outcome).
306. Thomas Christiano, The Significance of Public Deliberation, in DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 243, 247 (James Bohman & William Rehg eds., 1997).
307. Arguing that the process of discussion and debate can be expected to "root out policies based on unsubstantiated prejudices," resulting in better decisions.
308. James N. Druckman, Political Preference Formation: Competition, Deliberation, and the (Ir)relevance of Framing Effects 11, 20 (July 2, 2003).
309. Unpublished manuscript), available at http://www.polmeth.wustl.edu/media/Paper/druck03.pdf (positing and empirically confirming that deliberation helps individuals overcome framing effects). In other words, deliberation promotes rationality because only reasonable arguments will be effective in deliberation.
310. Dennis F. Thompson, Deliberative Democratic Theory and Empirical Political Science, 11 ANN. REV. POL. SCI. 497, 504 (2008).
311. 'In mutual justification, deliberators present their arguments in terms that are accessible to the relevant audience, and respond to reasonable arguments presented by opponents.'. In a sense, the warrant requirement mimics forced deliberation. The deliberation might actually occur, as in cases in which the magistrate can question the officer. See infra Part III. Or the deliberation may take place only in the officer's head, anticipating the magistrate's reaction.
312. George Loewenstein & Ted O'Donoghue, Animal Spirits: Affective and Deliberative Processes in Economic Behavior (Cornell Univ. Ctr. for Analytic Econ., Working Paper No. 04-14, 2004), available at http://www.arts.cornell.edu/econ/CAE/04-14.pdf.
313. Some papers propose a similar model using different terminology: "hot" for affective states and "cold" or "cool" for deliberative states.
314. Janet Metcalfe & Walter Mischel, A Hot/Cool-System Analysis of Delay of Gratification: Dynamics of Willpower, 106 PSYCHOL. REV. 3 (1999).
315. B. Douglas Bernheim & Antonio Rangel, Addiction and Cue-Conditioned Cognitive Processes 2 (Nat'l Bureau of Econ. Research, Working Paper No. 9329, 2002), available at http://www.najecon.org/naj/cache/666156000000000052.pdf.
316. Christiano, supra note 137, at 247.
317. Importantly, the emphasis is on explaining and justifying, not on any explicit or implicit awards or sanctions for better or worse decisions.
318. See Lerner & Tetlock, supra note 136, at 3-4.
319. Neal P. Mero & Stephan J. Motowidlo, Effects of Rater Accountability on the Accuracy and the Favorability of Performance Ratings, 80 J. APPLIED PSYCHOL. 517, 523 (1995).
320. Finding that subjects who were asked to rate the work of others produced more accurate ratings when held accountable.
321. Jennifer S. Lerner, Julie H. Goldberg & Philip E. Tetlock, Sober Second Thought: The Effects of Accountability, Anger, and Authoritarianism on Attributions of Responsibility, 24 PERSONALITY & SOC. PSYCHOL. BULL. 563, 564 (1998).
322. Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 653 (1995).
323. Id. at 657-658 (footnotes omitted).
324. Lisa Bortolotti, The Epistemic Benefits of Reason Giving, 19 THEORY & PSYCHOL. 624, 638 (2009).
325. '[I]t is instrumental to creating connections between those attitudes and other attitudes subjects have, either allowing subjects to develop a coherent narrative or highlighting a clash that can give rise to the revision of their new or prior attitudes.'.
326. See supra notes 124-27 and accompanying text.
327. For example, assume that the strength of a warrant application lies between zero and ten, and assume that the applicable threshold lies somewhere between two and eight. In other words, the police officer faces a distribution of thresholds between two and eight but does not know which one will be applied to her warrant application.
328. What will the police officer do? At the least, she will not submit an application below the threshold of two and will aim for a higher threshold that will increase the likelihood of the warrant being granted. How low the officer will go (how close to two) depends on the cost to the officer of submitting a warrant application, including any cost to the officer from a rejected application. If this cost is low, the officer will submit applications that are closer to the minimal threshold (closer to two). If this cost is high, the officer will submit only strong warrant applications.
329. In fact, if the cost of submitting an application is substantial, overdeterrence may result, with officers forgoing justified warrant applications (and justified searches and seizures). Cf. Tetlock, Skitka & Boettger, supra note 131, at 638 (explaining that, when unable to anticipate the views of those to whom they are accountable, decisionmakers 'engage in preemptive self-criticism in which they tr[y] to anticipate the various objections that potential critics could raise').
330. NYPD STOP & FRISK REPORT, supra note 103, at 164 (finding that, in over 15% of the cases, the reasons given for a frisk-a lower level of intrusion than a full-blown search-were insufficient to establish reasonable suspicion).
331. Illinois v. Gates, 462 U.S. 213, 239 (1983) (requiring affidavits to provide a magistrate with a 'substantial basis' to issue a warrant); United States v. Ventresca, 380 U.S. 102, 109 (1965) (setting standards for affidavits in warrant applications).
332. Calabresi, supra note 49, at 117 (referring to the most impetuous officers as "cowboy" cops).
333. The comparison between the permission model and the existing deterrence model resembles the comparison between ex ante regulation and ex post liability. See Shavell, supra note 43, at 271. An implicit assumption in the literature on regulation versus liability is that actors adhere to the regulation. In many cases, compliance with the ex ante regulation-the warrant requirement in the Fourth Amendment context-is not guaranteed and, in fact, requires the threat of ex post liability.
334. In theory, standards applied under the current system could be also clarified. But, as explained above, the ex post bias powerfully pushes towards greater vagueness.
335. Bookspan, supra note 9 (suggesting a presumptively unreasonable standard to create a more consistent search and seizure doctrine); Bradley, supra note 1 (advocating for an easily obtainable warrant for police guidance); Slobogin, supra note 9 (arguing that only the exigency and proportionality principles should govern search and seizure regulation).
336. Supra Part I.A.
337. We assume throughout that the police officer is sufficiently rational to make these
338. straightforward cost-benefit comparisons.
339. Supra notes 76-79 and accompanying text.
340. Herring v. United States, 555 U.S. 135, 144 (2009) (holding that good faith recordkeeping errors do not trigger the exclusionary rule); Arizona v. Evans, 514 U.S. 1, 14 (1995) (holding that good faith clerical errors by the county clerk do not trigger the exclusionary rule).
341. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (citing Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986)).
342. Stuntz, supra note 2.
343. Id. at 914.
344. Id.
345. Id. at 915; see also id. ('This risk of police perjury is unavoidable in an exclusionary rule system, since that system enforces the fourth amendment in disputes between officers and criminals.').
346. Id.
347. Id. at 915-916.
348. Supra notes 50-52 and accompanying text.
349. Stuntz, supra note 2, at 915.
350. Jon B. Gould & Stephen D. Mastrofski, Suspect Searches: Assessing Police Behavior Under the U.S. Constitution, 3 CRIMINOLOGY & PUB. POL'Y 315, 316 (2004).
351. "Most of the [search] research has been limited to secondary, indirect data sources, making it difficult to ascertain the true scope of the problem.".
352. Noah Kupferberg, Transparency: A New Role for Police Consent Decrees, 42 COLUM. J.L. & SOC. PROBS. 129, 146 (2008).
353. '[T]he data released in [the consent decree] jurisdictions is extremely raw and difficult to work with... [,] tends to be quite shallow... [,] [and] the bulk of the raw data is never released....').
354. Robert H. Whorf, Consent Searches Following Routine Traffic Stops: The Troubled Jurisprudence of a Doomed Drug Interdiction Technique, 28 OHIO. N.U. L. REV. 1, 20 (2001).
355. '[L]aw enforcement agencies do not maintain any records that would provide information on the numbers of traffic stops that turn into criminal investigations.... [T]hey do not have any data upon which to determine the frequency of... the routine traffic stop turned consent search.').
356. Kyllo v. U.S., 533 U.S. 27, 34 (2001) (defining what is an impermissible search of a home as resting on technology that is 'not in general public use'); Florida v. Riley, 488 U.S. 445, 453 (1989) (O'Connor, J., concurring) (resting definition of search on regular conduct of people).
357. Gould & Mastrofski, supra note 166, at 331.
358. Id. at 330 ("[W]hen the reliability of a source was in question, or the law was in flux, we erred on the side of the officers and coded searches as constitutional.").
359. In one case, four police officers lacking reasonable suspicion surrounded a black male in his late twenties who was riding a bike. The officers, while interrogating the man about potential drug possession, searched his knapsack without consent. When nothing was uncovered, the police then performed a full-body cavity search. See id. at 350-51.
360. Terry v. Ohio, 392 U.S. 1, 30 (1968).
361. Nypd Stop & Frisk Report, supra note 103, at 8-14.
362. Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York City, 28 FORDHAM URB. L.J. 457, 482 (2000).
363. Data on illicit drug flow is hard to collect for obvious reasons. However, it can be estimated from total seizures and arrests. For seizures, see U.S DEP'T OF JUSTICE NAT'L DRUG INTELLIGENCE CTR., National Drug Threat Assessment (2010), available at http://www.justice.gov/archive/ndic/pubs38/38661/38661p.pdf. Arrests for drug offenses have also remained fairly constant since 2002. See Stats & Facts, U.S. DRUG ENFORCEMENT ADMIN., http://www.justice.gov/dea/statistics.html#arrests (last visited Apr. 11, 2012).
364. Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citing Brinegar v. United States, 338 U.S. 160 (1949), and refusing to quantify probable cause as a percentage); Brinegar, 338 U.S. at 174 (defining probable cause as a reasonable belief that varies with the circumstances).
365. Gary Cordner, et al., VEHICLE STOPS IN SAN DIEGO: 2001, at 31 (2002), available at http://www.sandiego.gov/police/pdf/stoprpt.pdf.
366. Finding a 13.3% average hit rate and only an 8.7% average drug hit rate in San Diego traffic stops. Combined Illinois data from 2009 and 2010 indicate a 21% hit rate in consent searches that resulted from traffic stops.
367. Alexander Weiss & Dennis P. Rosenbaum, ILLINOIS TRAFFIC STOPS STATISTICS ACT 2010 ANNUAL REPORT: EXECUTIVE SUMMARY 10 (2011), available at http://www.dot.il.gov/travelstats/2010ITSSExecutiveSummary.pdf.
368. Alexander Weiss & Dennis P. Rosenbaum, ILLINOIS TRAFFIC STOPS STATISTICS STUDY: 2009 ANNUAL REPORT 14 (2010), available at http://www.dot.state.il.us/travelstats/ITSS2009AnnualReport.pdf.
369. INST. ON RACE & POVERTY, MINNESOTA STATEWIDE RACIAL PROFILING REPORT: ALL PARTICIPATING JURISDICTIONS 22 (2003), available at http://www.irpumn.org/uls/resources/projects/aggregatereport92303.pdf (finding 17.1% hit rate).
370. Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry into the "Consensual" Police-Citizen Encounter 170 (Oct. 1999)
371. Unpublished Ph.D. dissertation, Rutgers University) (on file with Northwestern University Law Review) (finding a 12.9% hit rate from consent searches in his data set). Averaged data for 2006 through 2008 from Los Angeles, however, indicate a 50.35% hit rate in city traffic stops. Arrest, Discipline, Use of Force, Field Data Capture, and Audit Statistics Reports, L.A. POLICE DEP'T, http://www.lapdonline.org/special_assistant_for_constitutional_policing/content_basic_view/9016 (last visited May 21, 2012) (containing 2006 and 2007 reports); Special Assistant for Constitutional Policing, L.A. POLICE DEP'T, http://www.lapdonline.org/special_assistant_for_constitutional_policing (last visited May 21, 2012) (containing 2007 and 2008 reports). The LAPD data is clearly questionable on this measure as they include finding the vehicle as a hit.
372. Kupferberg, supra note 166, at 151 ('In the 'If Search Was Conducted, What Was Discovered' category, why was the subcategory 'Nothing' from the 2002 report dropped in 2007, replaced by the nonsensical 'Vehicle' category (if one is searching a car, that is presumably a common finding)?'). If one accounts for the odd reporting by removing all of the 'vehicle' hits and recalculating a new LAPD hit rate, then the jurisdiction affirms, rather than contradicts, the others. Between 2006 and 2008, the LAPD discovered items in an average of 14.6% of the vehicles that they searched once one excludes the vehicle itself being 'discovered.'.
373. The San Diego consultants, while stopping short of suggesting intentional bias, hint at such problems when they note that '[o]f particular concern, it would appear from the data that noncompliance in completing stop forms was a bigger problem in more ethnically-diverse and less-affluent divisions, possibly skewing the data.' CORDNER ET AL., supra note 176, at 2.
374. Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 MICH. L. REV. 651, 659 (2002).
375. Stating evidence that the Maryland road data was falsified by collecting officers.
376. Wayne R. Lafave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 3.2(e) (4th ed. 2004 & Supp. 2011-2012).
377. Discussing the "fair probability" standard.
378. Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP. CT. REV. 153, 153-154.
379. Describing consensual encounters, such as those that occur on Greyhound buses, as "an important law enforcement tool".
380. United States v. Flowers, 912 F.2d 707, 710 (4th Cir. 1990).
381. See generally 4 LAFAVE, supra note 178, § 9.5 (explaining the heightened requirement in the absence of a specific crime).
382. Nypd Stop & Frisk Report, supra note 103, at 8 (covering a fifteen-month period in 1998 and 1999).
383. CTR. FOR CONSTITUTIONAL RIGHTS, RACIAL DISPARITY IN NYPD STOPS-AND-FRISKS 5 (2009), available at http://ccrjustice.org/files/reports/Report_CCR_NYPD_Stop_and_Frisk.pdf.
384. Matthew Block, Ford Fessenden & Janet Roberts, Stop, Question and Frisk in New York Neighborhoods, N.Y. TIMES (July 11, 2010), http://www.nytimes.com/interactive/2010/07/11/nyregion/20100711-stop-and-frisk.html.
385. CTR. FOR CONSTITUTIONAL RIGHTS, supra note 183, at 11-12.
386. Id. at 13.
387. Id. at 11-13.
388. Terry v. Ohio, 392 U.S. 1, 30 (1968).
389. van Duizend et al., Supra note 122, at 40.
390. Gould & Mastrofski, supra note 166, at 336 (suggesting a relationship between the aggressive departmental tone towards drug enforcement, the community policing policy, and an 'officer's inclination to search suspects unconstitutionally').
391. Terry, 392 U.S. at 28 (discussing 'the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so').
392. Payton v. New York, 445 U.S. 573, 592 (1980).
393. Amar, supra note 1, at 764.
394. Davies, supra note 13, at 627-628.
395. In fact, at common law, most felonies were punishable by death.
396. William Blackstone, COMMENTARIES *98.
397. Tennessee v. Garner, 471 U.S. 1, 13 (1985).
398. Citing Blackstone for the proposition that all felonies were punishable by death at common law.
399. INFORMATION TECH. DIV., L.A. POLICE DEP'T, WEEKLY CRIME & ARREST COMPARISON REPORT FOR THE 4 WEEKS ENDING - DECEMBER 16, 2006 (2006), available at http://www.lapdonline.org/home/pdf_view/23946.
400. NYS DIV. OF CRIMINAL JUSTICE SERVS., DISPOSITIONS OF ADULT ARRESTS (2011).
401. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 344 (Kathleen Maguire ed., 2003), available at http://www.albany.edu/sourcebook/pdf/section4.pdf. The following note accompanies the arrest table: 'These data were compiled by the Federal Bureau of Investigation through the Uniform Crime Reporting (UCR) Program.' Id.
402. Steve Visser, Dismissal Rate Raises Questions About Process, ATLANTA J.-CONST., Feb. 28, 2011, at B1.
403. Noting an arrestee who was charged after 'visiting a West Lake shade tree mechanic about a car he had fixed up for resale. Atlanta narcotics officers raided the house as [the arrestee] was leaving. They found 54 hits of cocaine hidden in its ceiling.'.
404. Id.
405. Fagan & Davies, supra note 173, at 462.
406. Id. at 476.
407. Id.
408. Id.
409. 420 U.S. 103 (1975).
410. Id. at 117-19, 125; see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) ('[W]e believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.').
411. Gerstein, 420 U.S. at 113 (citations omitted).
412. Id. at 120 (footnote omitted).
413. Id. at 121.
414. Illinois v. Lidster, 540 U.S. 419, 424 (2004) (emphasizing the 'lack [of] individualized suspicion' in 'information-seeking... stops'); City of Indianapolis v. Edmond, 531 U.S. 32, 41-44 (2000) (distinguishing programmatic checkpoints, where individualized suspicion is not required, from searches aimed at 'ordinary criminal wrongdoing').
415. 387 U.S. 523, 535 (1967).
416. It has been receiving recent attention.
417. Sherry F. Colb, Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms, 73 LAW & CONTEMP. PROBS. 69, 73 (2010).
418. Arguing that searches based on a statistical probability of guilt are more likely to be perceived as Fourth Amendement violations than are searches based on concrete individualized suspicion, even when the probabilities of guilt are, in fact, equal.
419. Bernard E. Harcourt & Tracey L. Meares, Randomization and the Fourth Amendment, 78 U. CHI. L. REV. 809 (2011).
420. Arguing that randomization can satisfy the principles of the Fourth Amendment.
421. Stipulation and Order of Settlement and Discontinuance, Sultan v. Kelly, No. 09 CV 00698, 2009 WL 4959352 (E.D.N.Y. June 29, 2009) (settling a claim that the NYPD's subway search program uses racial profiling).
422. Katz v. United States, 389 U.S. 347, 358 n.22 (1967) (noting that there would be no reasonable expectation of privacy if consent was given); Davis v. United States, 328 U.S. 582, 593-94 (1946) (finding that voluntary consent exempted search from Fourth Amendment requirements).
423. Supra note 25 (discussing the much-decried Court jurisprudence on consent searches).
424. Schneckloth v. Bustamonte, 412 U.S. 218, 231 (1973) (holding that it would be 'thoroughly impractical to impose' a per se warning requirement and require subjects to know that they had the right to refuse to a consent search).
425. See United States v. Drayton, 536 U.S. 194, 206-08 (2002) (upholding a bus interdiction search and holding that a reasonable person would feel free to terminate the police encounter when asked for consent during bus sweeps); Florida v. Bostick, 501 U.S. 429, 437, 439-40 (1991) (upholding search that occurred during a bus interdiction effort by suggesting that no seizure took place before consent was requested). There is good reason to question the apparently empirical conclusion by the Court that reasonable people would feel free to terminate the encounter.
426. Deposition of Charles B. Carter at 24, Carter v. Md. State Police, No. 03-C-96-000156 (Baltimore Cnty. Cir. Ct. Aug. 1, 1996) (on file with Northwestern University Law Review) (subsequently settled); see also Evidence Mounts that Police Target Minorities Excessively, USA TODAY, June 3, 1999, at 14A (discussing Carter case and settlement).
427. David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard, 99 J. CRIM. L. & CRIMINOLOGY 51, 73 (2009).
428. Conducting a survey of random citizens revealing that people would not feel free to end their police encounters, even in circumstances where the Supreme Court asserts that they may; Nadler, supra note 179, at 155-56 (discussing evidence that individuals do not feel free to refuse consent during bus searches).
429. WEISS & ROSENBAUM, supra note 176, at 12 (showing an average of 84.8% of drivers consent when asked in two studies); Lichtenberg, supra note 176, at 199 (finding 89.3% of drivers consent when asked).
430. L.A. POLICE DEP'T, ARREST, DISCIPLINE, USE OF FORCE, FIELD DATA CAPTURE & AUDIT STATISTICS & THE CITY STATUS REPORT COVERING PERIOD OF JAN. 1, 2006-JUNE 30, 2006, at 8 (2006), available at http://www.lapdonline.org/home/pdf_view/33233.
431. Ohio v. Robinette, 519 U.S. 33, 48 (1996) (Stevens, J., dissenting).
432. Steven L. Chanenson, Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches, 71 TENN. L. REV. 399, 466 (2004).
433. Arguing that informing subjects of their right to refuse "can't hurt".
434. Stephen Fraidin & Jon D. Hanson, Toward Unlocking Lockups, 103 YALE L.J. 1739, 1745 (1994).
435. Robert H. Whorf, "Coercive Ambiguity" in the Routine Traffic Stop Turned Consent Search, 30 SUFFOLK U. L. REV. 379, 410 (1997)
436. Suggesting that being informed that one is free to go should be a firm rule in consent search settings.
437. Lichtenberg, supra note 176, at 234 (discussing the similarities between empirical research showing the minute effect of verbal consent warnings and the research surrounding Miranda's insubstantial effect on rates of confession).
438. Id. at 260-263 (describing police tactics used to generate consent).
439. David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. PA. J. CONST. L. 296, 364 (2001).
440. "All consent requests should be recorded, and all consents should be in writing and signed by the driver, passenger, or pedestrian who was stopped.".
441. Infra notes 255-60 and accompanying text.
442. Kupferberg, supra note 166, at 132 (noting that concern over racial profiling "led to numerous consent decrees designed to prevent racial profiling by police").
443. Matthew R. Durose, Erica L. Smith & Patrick A. Langan, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CONTACTS BETWEEN POLICE AND THE PUBLIC, 2005 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp05.pdf.
444. Data on the number of searches conducted is taken from consent decree reports available at INST. ON RACE & POVERTY, supra note 176, at 4 (discussing Minneapolis); L.A. POLICE DEP'T, supra note 176; U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-00-41, RACIAL PROFILING: LIMITED DATA AVAILABLE ON MOTORIST STOPS 50 (2000), available at http://www.gao.gov/new.items/gg00041.pdf (discussing the San Diego Police Department). Population figures, used in the per-capita searches calculations, are taken from the Census website. See generally State & County QuickFacts, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/ (last visited May 21, 2012).
445. The extrapolation technique used is the following: For each one of the three jurisdictions-LA, San Diego, and Minneapolis-we took the average number of searches when there were multiple years of data, divided this number by the population in the jurisdiction to obtain per-capita search rates, and then multiplied by the total U.S. population. A total U.S population figure of 309 million was taken from U.S. CENSUS BUREAU, supra note 229. An alternative extrapolation technique, based on the number of sworn police officers, rather than on population figures, yielded similar results.
446. Data on the number of sworn officers in each of the three jurisdictions and aggregate U.S. figures was taken from the Uniform Crime Reports' Law Enforcement Personnel section. FED. BUREAU OF INVESTIGATION, Full-Time Law Enforcement Employees by State, 2009, CRIME IN THE UNITED STATES 2009 (Sept. 2010), http://www2.fbi.gov/ucr/cius2009/data/table_77.html (last visited June 3, 2012). A third approach for obtaining total U.S. search figures is based on available estimates. Specifically, we found several estimates of the total number of traffic stops in the U.S., ranging from 43 million to 58 million. We also found several estimates of traffic-stop search rates from several jurisdictions ranging from 4.3% to 6.8%. Multiplying the total number of traffic stops in the U.S. (more precisely, the mid-point of the 43-million to 58-million range) by the search rate (more precisely, by the midpoint of the 4.3% to 6.8% range), yields an estimate of 2.55 million traffic stop related searches per year in the United States.
447. For estimates of the total number of traffic stops in the U.S., see CORDNER ET AL., supra note 176, at 24 (suggesting 57 million stops annually between 2000 and 2001); INST. ON RACE & POVERTY, supra note 176, at 11-12 (suggesting 46.5 million stops in 2002); L.A. POLICE DEP'T, supra note 176 (combined studies for three years suggesting 48 million stops annually between 2006 and 2008); MD. STATISTICAL ANALYSIS CTR., GOVERNOR'S OFFICE OF CRIME CONTROL & PREVENTION, EIGHTH REPORT TO THE STATE OF MARYLAND UNDER TR 25-113, at 8 (2010), available at http://www.goccp.maryland.gov/msac/documents/TSDReport2010.pdf.
448. MD. STATISTICAL ANALYSIS CTR., GOVERNOR'S OFFICE OF CRIME CONTROL & PREVENTION, SEVENTH REPORT TO THE STATE OF MARYLAND UNDER TR 25-113, at 4 (2009), available at http://www.goccp.maryland.gov/msac/documents/TSDReport2009.pdf (suggesting, with the 2010 Maryland report, supra, that there were 43 million stops annually between 2008 and 2009); WEISS & ROSENBAUM, supra note 176 (two studies suggesting 58.3 million stops annually between 2009 and 2010).
449. Durose, Smith & LANGAN, supra note 228, at 1 (suggesting there were 29.4 million stops in 2005).
450. Illya D. Lichtenberg & Alisa Smith, How Dangerous Are Routine Police-Citizen Traffic Stops?, 29 J. CRIM. JUST. 419, 423 (2001).
451. Providing estimates of 60, 120, or 160 million traffic stops per year). For search-rate estimates, see CORDNER ET AL., supra note 176, at 16 (finding that an average of 6.75% of San Diego traffic stops resulted in a search between 2000 and 2001); DUROSE, SMITH & LANGAN, supra note 228, at 1 (finding that 5% of traffic stops nationwide resulted in a search in 2005); MD. STATISTICAL ANALYSIS CTR., supra, at 9 (finding that an average of 3% of Maryland traffic stops resulted in a search between 2008 and 2009). But see INST. ON RACE & POVERTY, supra note 176, at 10, 19, 22 (indicating that 9.33% of Minnesota traffic stops resulted in a search in 2002); L.A. POLICE DEP'T, supra note 176 (indicating that an average of 12.06% of Los Angeles traffic stops resulted in a search between 2006 and 2008).
452. Consent Decree, United States v. City of Los Angeles, No. CV 00-11769 (C.D. Cal. June 19, 2001), available at http://court.cacd.uscourts.gov/CACD/RecentPubOp.nsf/ecc65f191f28f59b8825728f005ddf4e/1105cebf2219a6a288256b48007a04c1/$FILE/cv00-11769.pdf.
453. L.A. POLICE DEP'T, ARREST, DISCIPLINE, USE OF FORCE, FIELD DATA CAPTURE, AUDIT STATISTICS, AND NEW DIRECTIVES/POLICIES: COVERING PERIOD OF JULY 1, 2008-DECEMEBER 31, 2008, at 4, 6 (2009), available at http://www.lapdonline.org/assets/pdf/FinalConsentDecreeRptJulyDecember2008.pdf (showing that there were about 97,000 searches in a half-year period, 34,000 of which resulted from auto stops).
454. van Duizend et al., supra note 122, at 17.
455. Craig D. Uchida & Timothy S. Bynum, Search Warrants, Motions to Suppress and "Lost Cases:" The Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. CRIM. L. & CRIMINOLOGY 1034, 1051 (1991).
456. Gould & Mastrofski, supra note 166, at 334.
457. N.Y.C. POLICE DEP'T, INTELLIGENCE DIV., SAFETNET MONTHLY TOTALS 2008 (2011) (on file with author).
458. The extrapolation takes the figure of 5,000 warrants, divides it by the New York City population, and then multiplies by the total U.S. population.
459. See L.A. POLICE DEP'T, supra note 176 (L.A. figures); PUB. MGMT. RES., CITY OF PITTSBURGH AUDITOR'S QUARTERLY REPORTS (1997-2002), available at http://www.parc.info/consent_decrees_-_memoranda_of_agreement_-_monitor_reports.chtml (Pittsburgh figures). Per-capita rates were calculated by dividing the number of searches by the population in the jurisdiction. Population figures were taken from U.S. CENSUS BUREAU, supra note 229.
460. Robert C. Davis, et al., TURNING NECESSITY INTO VIRTUE: PITTSBURGH'S EXPERIENCE WITH A FEDERAL CONSENT DECREE 17-18 (2002), available at http://www.vera.org/download?file=239/Pittsburgh%2Bconsent%2Bdecree.pdf.
461. The contrast between Pittsburgh and the norm is best seen when one contrasts the strictness of the Pittsburgh search policy with the general police practice of opportunistic searching. See VAN DUIZEND ET AL., supra note 122, at 68 (discussing tactics used by police to avoid warrants and searches via 'consent' or as searches incident to arrest).
462. Davis et al., supra note 239, at 18.
463. Id. at 51.
464. This is shown by comparing the total search rate in Pittsburgh-0.006 per capita-with the traffic-stop search rates reported earlier in the section. See supra text accompanying note 239. The Pittsburgh figure represents total searches performed by city officers during the time period.
465. Davis et al., supra note 239, at 17.
466. As a result of the decree, the Pittsburgh Bureau of Police created the Field Contact/Search/Seizure Report. This report, which has multiple uses, goes beyond the requirements of the consent decree in some respects. In addition to capturing information about all searches (strip searches, warrantless searches, consent searches, etc.), it captures information regarding the seizure of any property resulting from a search and field interviews of persons stopped by the police. Additionally, the Pittsburgh consent decree monitor believes that the reported Pittsburgh figures represent all of the searches by the department during the decree and noted departmental disciplinary mechanisms that were pursued after rare instances of noncompliance were observed by his team. See Telephone Interview with Dr. Jim Ginger, Consent Decree Monitor and CEO, Pub. Mgmt. Res. (Sept. 23, 2011).
467. Davis et al., supra note 239, at 53-55.
468. See id. at 53-56. Our conversations with the Pittsburgh consent decree monitor also confirmed this general trend. Telephone Interview with Dr. Jim Ginger, supra note 242.
469. Supra Part IV.B.3.
470. Supra Part II.
471. Peter F. Nardulli, The Societal Costs of the Exclusionary Rule Revisited, 1987 U. ILL. L. REV. 223, 228.
472. 'It appears from Table 1 that motions to suppress occur in about 10.2% of all cases, but this is slightly inflated because multiple motions are made in some cases.... These motions actually affect about 9.7% of all cases.'; Uchida & Bynum, supra note 234, at 1052 (finding that 13% of search warrants are contested by defendants via motions to suppress).
473. Robert C. Lafountain et al., NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2008 STATE COURT CASELOADS 20 (2010), available at http://www.courtstatistics.org/Other-Pages/~/media/Microsites/Files/CSP/EWSC-2008-Online.ashx.
474. Simply comparing the percent of search warrant cases that have suppression motions filed to cases without warrants may lead to spurious conclusions.
475. Steven Duke, Dialogue, Making Leon Worse, 95 YALE L.J. 1405, 1409 (1986).
476. 'The 5% suppression rate for warrant searches in the NCSC study, therefore, was about five times as great as suppressions in felony cases in general, most of which involved warrantless searches.'. Given how rarely warrants actually are sought in the law enforcement context, see supra text accompanying notes 21-23, it stands to follow that police are likely to seek them in only the most important cases, see VAN DUIZEND ET AL., supra note 122, at 82 (noting that officers tend to get warrants in cases where they want 'just to be safe' before conducting the search). But if officers only seek warrants in big cases with big numbers, then those cases are also likely to be the most heavily litigated and the most likely to have suppression motions filed by aggressive defense counsel.
477. Illinois v. Gates, 462 U.S. 213, 236 (1983) (granting 'great deference' to a magistrate's determination of probable cause (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))).
478. United States v. Leon, 468 U.S. 897, 922-24 (1984).
479. We bracket here the question of whether probable cause is required for all warrants.
480. The increase in the number of warrant applications will be tempered by police self-screening. See supra Part IV.C.2.
481. Historically warrants were issued by justices of the peace, low-ranking judicial officers. See Davies, supra note 13, at 623-624. Today a similar function is filled by magistrates. See 28 U.S.C. § 636(b)-(c) (2006) (vesting magistrates with the power of judicial officers).
482. A. Leo Levin & Michael E. Kunz, Thinking About Judgeships, 44 AM. U. L. REV. 1627, 1643-1644 (1995).
483. Characterizing magistrates as adjunct judicial officers.
484. Anne-Marie C. Carstens, Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court's Original Jurisdiction Cases, 86 MINN. L. REV. 625, 677-684 (2002).
485. Discussing the various types of judicial adjuncts and their role in dispute resolution.
486. Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276, 1287 (2005).
487. Discussing "tough on crime" politics and pressure to increase sentences.
488. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 509 (2001).
489. Discussing the relationship between "tough on crime" politics and increased criminal prohibitions and harsher sentences.
490. For a levelheaded, though somewhat dated, compilation of police complaints about the warrant process, see VAN DUIZEND ET AL., supra note 122, at 82-87, 92, 108-11. Commonly noted are that different judges apply unpredictably different standards to warrant applications, that judges or prosecutors are too often unavailable when the warrant needs to be reviewed, and that there is insufficient clerical help to prepare after-hours warrants. Id. at 79-80, 108-10. In an off-the-record conversation with one of the authors, NYPD personnel similarly mentioned the burdens of obtaining warrants.
491. Supra note 18 and accompanying text.
492. Supra note 17 and accompanying text.
493. Dorman v. United States, 435 F.2d 385, 392 (D.C. Cir 1970) (en banc) ('Terms like 'exigent circumstances'... are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant, and that it is only in the light of those circumstances and that need that the warrantless search meets the ultimate test of avoiding condemnation under the Fourth Amendment as 'unreasonable."); see also Welsh v. Wisconsin, 466 U.S. 740, 751-52 (1984) (citing Dorman as 'a leading federal case defining exigent circumstances').
494. VAN DUIZEND ET AL., supra note 122, at 94-102 (outlining survey results showing different judicial views on how the warrant review should be conducted, how much the use of confidential informants by the police should be questioned, and what generally leads to rejected warrants).
495. Wayne R. LaFave, The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 MICH. L. REV. 1843, 1874-1886 (2004).
496. Outlining types of record and warrant checks that courts have permitted to take place during traffic stops and the amount of time those checks can take.
497. Supra note 229 and accompanying text (discussing traffic-stop estimates).
498. Other scholars note that the routine versions of these checks almost always take a few minutes. Stopping officers also often conduct warrant queries, which can take anywhere from 'a few minutes to ten minutes to thirty minutes.' LaFave, supra note 262, at 1877 (footnotes omitted). Warrant review by a magistrate, on the other hand, generally takes about three minutes. See VAN DUIZEND ET AL., supra note 122, at 26. While requiring warrants in the traffic-stop context would undoubtedly require streamlining some common elements for preparation and utilizing available technology for presentation, actual review of the warrant would take less time than some of the computer checks currently used.
499. Goode, supra note 19.