The supreme court's contemporary silver platter doctrine

Texas Law Review

Volumn 91, Issue 1, 2012, Pages 7-47

  Gray, David ^a   Cooper, Meagan ^a   McAloon, David ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 84876499137     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (392)

1. Boyd v. United States, 116 U.S. 616, 634-35 (1886).
2. Mapp v. Ohio, 367 U.S. 643, 657 (1961).
3. See, e.g., Agnello v. United States, 269 U.S. 20, 35 (1925) ("The admission of evidence obtained by [an illegal] search and seizure was error and prejudicial to the substantial rights of [the defendant].")
4. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (holding that allowing the government to profit from illegally seized evidence "reduces the Fourth Amendment to a form of words")
5. Weeks v. United States, 232 U.S. 383, 393 (1914) ("If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.")
6. see also Robert M. Bloom & David H. Fentin, "A More Majestic Conception": The Importance of Judicial Integrity in Preserving the Exclusionary Rule, 13 U. Pa. J. Const. L. 47, 50-53 (2010) (summarizing the Court's attitude toward the exclusionary rule between its inception and its incorporation to the states)
7. William C. Heffernan, The Fourth Amendment Exclusionary Rule as a Constitutional Remedy, 88 Geo. L.J. 799, 808 (2000) (discussing the inception of the exclusionary rule and cases that applied it)
8. Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1372-77 (1983) (tracing the development of the exclusionary rule from Boyd v. United States to Mapp v. Ohio).
9. Weeks, 232 U.S. at 393.
10. Id. at 394.
11. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803) ("[E]very right, when withheld, must have a remedy ").
12. 251 U.S. 385 (1920).
13. Id. at 392.
14. see also Weeks, 232 U.S. at 393 ("If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.").
15. Heffernan WC, supra note 3, at 825.
16. 131 S. Ct. 2419 (2011).
17. Id. at 2431.
18. 453 U.S. 454 (1981).
19. Davis, 131 S. Ct. at 2428.
20. 556 U.S. 332, 335 (2009).
21. Arizona v. Gant was decided on April 21, 2009.
22. Id. at 332.
23. Davis's car was searched in April 2007.
24. Davis, 131 S. Ct. at 2425.
25. Davis, 131 S. Ct. at 2428-29.
26. See David Gray, A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence, 50 Am. Crim. L. Rev. (forthcoming 2013) (manuscript at 56) (on file with authors) (arguing that "deterrence considerations alone are not sufficient to justify a general good faith exception to the exclusionary rule").
27. See Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670, 740 (2011) (arguing that the convergence of the good faith exception with immunity doctrine will result in a functional diminishment of Fourth Amendment protection).
28. 414 U.S. 338 (1974).
29. Id. at 354-55.
30. United States v. Janis, 428 U.S. 433, 459-60 (1976).
31. Stone v. Powell, 428 U.S. 465, 494-96 (1976).
32. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984).
33. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
34. We elaborate the contours and consequences of the silver platter doctrine infra in Part II.
35. 364 U.S. 206 (1960).
36. Id. at 222.
37. For example, according to the 2010 Census, about 14% of the population identified themselves as "black" and about 75% identified as "white." Bureau of the census, U.S. Dep't of commerce, C2010BR-06, The Black Population: 2010, at 3 tbl.1 (2011) [hereinafter BLACK POPULATION]
38. Bureau Of The Census, U.S. Dep't Of Commerce, C2010BR-05, THE WHITE POPULATION: 2010, at 3 tbl.1 (2011) [hereinafter WHITE POPULATION].
39. However, a disproportionate 39% of the parole population in 2010 was black, while only 42% was white. LAUREN E. GLAZE & THOMAS P. Bonczar, Bureau Of Justice Statistics, U.S. Dep't Of Justice, NCJ 236019, PROBATION AND PAROLE IN THE UNITED STATES, 2010, at 43 app. tbl.15 (2011) [hereinafter PROBATION AND PAROLE 2010]. Almost by definition, then, the collateral use exception for parole revocation hearings will impact black citizens disproportionately. As we point out below, these raw numbers only begin to tell the full story.
40. 232 U.S. 383 (1914).
41. Id. at 392.
42. Id. at 393.
43. Id. at 394.
44. Id. at 398.
45. 338 U.S. 25 (1949).
46. 367 U.S. 643 (1961).
47. Elkins v. United States, 364 U.S. 206, 213-15 (1960).
48. 273 U.S. 28 (1927).
49. Before 1967, the Court took the position that warrants should not issue if the proposed search was for "mere evidence" rather than the "fruits and instrumentalities" of a crime. The Court abandoned that view in Warden v. Hayden, 387 U.S. 294, 301-02 (1967).
50. Byars, 273 U.S. at 29.
51. Id. at 30.
52. Id. at 29.
53. Id. at 31-32.
54. Id. at 33.
55. Id. at 33.
56. 338 U.S. 25, 27-28 (1949)
57. see Elkins v. United States, 364 U.S. 206, 213-14 (1960) (noting that federal courts continued to admit evidence illegally seized by state officers even though the logical foundation of the Weeks admissibility rule had been undermined by Wolf v. Colorado).
58. Wolf, 338 U.S. at 33
59. see also United States v. Wallace & Tiernan Co., 336 U.S. 793, 798 (1949) (indicating in dicta that the exclusionary rule is an "extraordinary sanction devised by this Court to prevent violations of the Fourth Amendment").
60. 338 U.S. 74, 78-79 (1949) ("The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter.").
61. Elkins, 364 U.S. at 219.
62. See id. at 210-11 (describing the use in federal prosecutions of evidence obtained through unconstitutional searches by state officials).
63. Id. at 223-24.
64. Id. at 215.
65. Id. at 216.
66. Id. at 220-21.
67. Justice Traynor later recounted his personal conversion from exclusionary rule critic to supporter in a thoughtful essay. Roger J. Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 321-22 (1962).
68. See People v. Cahan, 282 P.2d 905, 913 (Cal. 1955) (describing the available remedies before the Supreme Court of California adopted the exclusionary rule).
69. 282 P.2d 905 (Cal. 1955).
70. Id. at 911-13.
71. Elkins v. United States, 364 U.S. 206, 220-21 (1960).
72. Id. at 221 ("Yet when a federal court sitting in an exclusionary state admits evidence lawlessly seized by state agents, it not only frustrates state policy, but frustrates that policy in a particularly inappropriate and ironic way. For by admitting the unlawfully seized evidence the federal court serves to defeat the state's effort to assure obedience to the Federal Constitution.").
73. Id. at 222-23.
74. 367 U.S. 643, 655 (1961).
75. Id. at 678 (Harlan, J., dissenting).
76. Id. at 651-53, 657-58
77. see also id. at 669-72 (Douglas, J., concurring) (agreeing that the exclusionary rule is the best remedy to deter law enforcement misconduct).
78. Id. at 656.
79. Id. at 657.
80. Id. at 659
81. see id. ("Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.").
82. Elkins v. United States, 364 U.S. 206, 211 (1960).
83. Id. at 223.
84. United States v. Calandra, 414 U.S. 338, 354-55 (1974).
85. United States v. Janis, 428 U.S. 433, 459-60 (1976).
86. Stone v. Powell, 428 U.S. 465, 494-96 (1976).
87. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984).
88. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
89. See supra note 65 and accompanying text.
90. United States v. Calandra, 414 U.S. 338, 339 (1974).
91. Id. at 340.
92. Id. at 340-41.
93. See id. (describing the evidence seized as including the card and "various other items, including books and records of the company, stock certificates, and address books").
94. Id. at 341.
95. See id. (describing Calandra's invocation of the Fifth Amendment privilege when asked about the seized evidence and his request to postpone the hearing on the Government's application for immunity in order to prepare a motion to suppress that evidence).
96. See id. at 341-42 (recounting that, after Calandra's motion to suppress, "the District Court entered its judgment ordering the evidence suppressed and returned to Calandra and further ordering that Calandra need not answer any of the grand jury's questions based on the suppressed evidence").
97. Id. at 341.
98. Id. at 342.
99. Id. at 341-42.
100. Elkins v. United States, 364 U.S. 206, 217 (1960).
101. See, e.g., Calandra, 414 U.S. at 347-48 (stating that the exclusionary rule protects Fourth Amendment rights generally through its deterrent effect (citing Elkins, 364 U.S. at 217))
102. United States v. Janis, 428 U.S. 433, 445-46 (1976) (noting that although state officials could admit evidence that the exclusionary rule barred federal officials from admitting, state officials would be deterred by the prohibition on federal officials (citing Elkins, 364 U.S. at 223)).
103. We are in debt to Orin Kerr for pressing this concern.
104. Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv. L. Rev. 802 (1982).
105. Id. at 811-32.
106. For a concise and available explanation of the Arrow Theorem, see MAXWELL L. STEARNS & TODD J. ZYWICKI, Public Choice Concepts And Applications In Law 107-09, 138-51 (2009).
107. See, e.g., MAXWELL L. STEARNS, Constitutional Process: A Social Choice Analysis Of Supreme Court Decision Making 3 (2000) (arguing social choice theory is "uniquely suited" to understanding the Supreme Court's decision-making rules)
108. Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 Colum. L. Rev. 2121, 2127 (1990) (arguing that social choice theory, conceived properly, does not threaten the legitimacy of democratic decision making)
109. David Post & Steven C. Salop, Rowing Against the Tidewater: A Theory of Voting by Multijudge Panels, 80 Geo. L.J. 743, 747 (1992) (applying Arrow's Impossibility Theorem to multi-judge panels)
110. John M. Rogers, "I Vote this Way Because I'm Wrong": The Supreme Court Justice as Epimenides, 79 Ky. L.J. 439, 469 (1991) (criticizing Easterbrook's use of social choice theory).
111. See Easterbrook FH, supra note 96, at 830 (describing cases of "judicial self-contradiction" as "easy cases").
112. This is a relatively recent commitment and represents a shift from the Court's focus on constitutional principle and institutional integrity in Weeks and Mapp. For a brief history of this shift, see generally Gray, supra note 19.
113. Calandra v. United States, 414 U.S. 338, 347 (1974). As is pointed out below, this selective citation to Elkins ignores that decision's further reliance on constitutional principles, including the "imperative" of preserving judicial and governmental integrity.
114. Elkins v. United States, 364 U.S. 206, 222-23 (1960).
115. Calandra, 414 U.S. at 351.
116. The Court has yet to make good on Justice Powell's threat to inflict exclusion in cases where officers violate the Fourth Amendment with a specific design on advancing a grand jury investigation. Given the Court's willingness to turn a blind eye to law enforcement policies and practices that exploit exceptions to the exclusionary rule to license Fourth Amendment violations in United States v. Payner, 447 U.S. 727 (1980), decided a mere six years after Calandra, there is little reason to believe that it ever will.
117. See infra notes 264-77 and accompanying text.
118. H.L.A. HART, Punishment And Responsibility 19 (1968).
119. For a more extensive exegesis and explanation of how Hart's critique applies to other components of the Court's Fourth Amendment exclusionary rule jurisprudence, see generally Gray, supra note 19.
120. HART HLA, supra note 104, at 19.
121. For a brief sketch of these retributivist commitments, see David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1656-72 (2010).
122. Jeremy Bentham, An Introduction To The Principles Of Morals And Legislation 161-62 (1789).
123. Id. at 167.
124. See id. at 166-67 (arguing that under the principle of utility "[i]t is plain ...punishment ought not to be inflicted ...where it must be inefficacious: where it cannot act so as to prevent the mischief").
125. Hart HLA, supra note 104, at 19.
126. Gary Becker has suggested a similar conclusion. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169, 170 (1968)
127. see also id. at 204 ("The anticipation of conviction and punishment reduces the loss from offenses and thus increases social welfare by discouraging some offenders.").
128. Hart HLA, supra note 104, at 19.
129. See supra note 102 and accompanying text.
130. United States v. Calandra, 414 U.S. 338, 351 (1974).
131. This is essentially the same point endorsed by the Court in its investigative-use cases, where it has barred officers from exploiting illegally seized evidence to advance their investigations, without regard for whether their intentions when violating the Fourth Amendment were to seize evidence for later admission at trial. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484-91 (1963).
132. See supra notes 75-79 and accompanying text.
133. See supra notes 65-66, 93-94 and accompanying text.
134. See supra notes 65-66 and accompanying text.
135. See supra notes 75-79 and accompanying text.
136. United States v. Calandra, 414 U.S. 338, 351 (1974).
137. John C. Erb, Discussion of Recent Decisions, An Unexcited View of United States v. Calandra, 51 Chi.-Kent L. Rev. 212, 214 (1974).
138. Id. at 213 (citing Hale v. Henkel, 201 U.S. 43, 59 (1906) and Wood v. Georgia, 370 U.S. 375, 390 (1962)).
139. See Russell L. Weaver et al., Principles Of Criminal Procedure 303-04 (3d ed. 2008) (explaining that the grand jury serves as a "shield" that protects citizens from unfounded prosecution).
140. U.S. Const. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ").
141. Hurtado v. California, 110 U.S. 516, 538 (1884).
142. Weaver RL, supra note 123, at 304.
143. Erb JC, supra note 121, at 213.
144. Weaver RL, supra note 123, at 309.
145. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 377.
146. Id. at 377 n.47. Slobogin cited sociological literature about both Philadelphia and New York police officers to reach this conclusion. Id. According to these studies, the primary goal of law enforcement is to get a "collar."
147. Id. at 47.
148. Floyd Feeney, Police Clearances: A Poor Way to Measure the Impact of Miranda on the Police, 32 Rutgers L.J. 1, 13 (2000).
149. Wayne R. Lafave et al., Criminal Procedure 15 (5th ed. 2009).
150. C. Feeney, supra note 132, at 17 (noting that police departments would consider a case "exceptionally" cleared so long as the department was satisfied that the individual arrested actually committed the crime). In other words, an actually innocent individual cannot be supposed to have actually committed the crime in question.
151. William J. Mertens & Silas Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo. L.J. 365, 385-88 (1981).
152. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2466 (2004).
153. Mark Motivans, Bureau Of Justice Statistics, U.S. Dep't Of Justice, Ncj 234184, Federal Justice Statistics, 2009, at 12 (2011).
154. Slobogin B., supra note 130, at 375 n.37.
155. Joseph J. Barone, Note, Calandra-The Present Status of the Exclusionary Rule, 4 Cap. U. L. Rev. 95, 105 (1975).
156. See Neal Kumar Katyal, Conspiracy Theory, 112 Yale L.J. 1307, 1309-20 (2003) (analyzing the economic and psychological impacts of group criminal activity and highlighting the functional benefits of a more vibrant conspiracy doctrine).
157. See, e.g., International Drug Smuggling Conspiracy at Philadelphia International Airport Stopped by HSI Special Agents, Airline Employee Conspirator Sentenced, ICE (Oct. 2, 2012), http://www.ice.gov/news/releases/1210/121002philadelphia.htm (quoting the Special Agent in Charge as saying, "[B]ringing individuals engaged in international drug trafficking to justice is a high [Homeland Security Investigations] priority")
158. Leader of Oxycodone Trafficking Ring Sentenced to Over 10 Years in Prison, U.S. Drug Enforcement Admin. (Sept. 11, 2012), http://www.justice.gov/dea/divisions/atl/2012/atl091112.shtml (quoting the U.S. Attorney for the Western District of North Carolina as saying, "The prosecution of individuals involved in the illegal distribution of prescription pain pills is a top priority for this Office").
159. See Katyal NK, supra note 140, at 1328-29 (discussing the necessity of "flipping"coconspirators in securing many convictions and guilty pleas).
160. United States v. Calandra, 414 U.S. 338, 365 (1974) (Brennan, J., dissenting); see Katyal, supra note 140, at 1333 (noting the incentive for law enforcement to create "mechanisms to intercept communications between conspirators").
161. Mertens WJ. & Wasserstrom S., supra note 135, at 387-88.
162. Id. at 396-97.
163. Johnson v. United States, 333 U.S. 10, 14 (1948).
164. The authors are grateful for feedback received from Professors Ingrid Eagly, Maureen Sweeney, and Kathy Vaughns on this subpart.
165. 468 U.S. 1032, 1050-51 (1984). That rule has been modified slightly by the Board of Immigration Appeals, which will enforce the exclusionary rule in "egregious" cases that implicate "fundamental fairness."
166. See, e.g., In re Toro, 17 I. & N. Dec. 340 (BIA 1980) (noting that, to be admissible in deportation proceedings, evidence must be probative and its use be fundamentally fair, such that it does not deprive the defendant of his Fifth Amendment rights, and further noting that, in certain cases, the manner in which evidence is seized may be so egregious as to offend Fifth Amendment due process rights).
167. Cases in which that rule has been applied are few and far between, however, and do little to alter the core shift in incentives accomplished by Lopez-Mendoza.
168. See Stella Burch Elias, "Good Reason to Believe": Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109, 1124-40 (describing how Lopez-Mendoza has led to widespread violations of Fourth Amendment rights).
169. 468 U.S. at 1035-38.
170. Id. Specifically, Elias Sandoval-Sanchez challenged the evidence INS offered as the fruit of an illegal arrest, while Adan Lopez-Mendoza initially limited his challenge to the legality of his arrest. Id. at 1035-36.
171. Id. at 1036, 1038.
172. Id. at 1050-51.
173. Id. at 1042-46.
174. Hart HLA, supra note 104, at 19.
175. See Elias, supra note 148, at 1121 (citing internal correspondence among the Justices documenting their view that immigration enforcement was "purely civil" in nature and did not involve criminal punishment).
176. 130 S. Ct. 1473 (2010).
177. Id. at 1480.
178. Gray D, supra note 19, at 61-62.
179. See Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 Ucla L. Rev. 1749, 1767-805 (2011) (examining the relationship between local immigration prosecution and federal immigration law)
180. Elias, supra note 148, at 1135-40 (citing allegations of Fourth Amendment violations as the Justice Department has invoked the "war on terror" to justify increasing immigration enforcement via state and local police officers).
181. See generally HUMPHREY J. DESMOND, THE KNOW-NOTHING PARTY: A SKETCH (1905).
182. See e.g., Steven A. Holmes, Candidates Criticized for Sound-Bite Approach to Problem of Illegal Aliens, N.Y. Times, Mar. 7, 1996, at B10 (reporting on the immigration debate between Pat Buchanan and Bob Dole during the Republican primary season).
183. See 8 U.S.C. § 1252c (2006) (authorizing state and local authorities to arrest and detain illegal aliens who have previously been convicted of a felony or who reenter the United States without permission of the Attorney General after deportation).
184. Office of immigration statistics, u.s. Dep't of homeland sec., 2010 YEARBOOK OF IMMIGRATION STATISTICS 94 tbl.36 (2011) (Aliens Removed or Returned: Fiscal Years 1892 to 2010) [hereinafter 2010 YEARBOOK OF IMMIGRATION STATISTICS], available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2010/ois_yb_2010.pdf.
185. Id. As Maureen Sweeney explains, the history of current immigration law is complex and no one change or development is responsible for the dramatic rise in immigration removals since the mid-1990s. Maureen A. Sweeney, Fact or Fiction: The Legal Construction of Immigration Removal for Crimes, 27 Yale J. On Reg. 47, 60-67 (2010). It is beyond our means or purposes here to offer a contrary reductivist explanation. Rather, our point is that the rise both signifies and engenders heightened focus on immigration enforcement among law enforcement officers at all levels.
186. 2010 Yearbook Of Immigration Statistics, supra note 164, at 94 tbl.36.
187. About ICE, ICE, http://www.ice.gov/about/overview/.
188. see also Quick Facts, FBI, http://www.fbi.gov/about-us/quick-facts (reporting that "[o]n September 30, 2012, [the FBI] had a total of 36,074 employees").
189. Cf. United States v. Calandra, 414 U.S. 338, 366 (1974) (Brennan, J., dissenting) (characterizing the Court's departure from the exclusionary rule in the grand jury context as a betrayal of the Court's role in upholding constitutional rights).
190. See Devon W. Carbado & Cheryl I. Harris, Undocumented Criminal Procedure, 58 Ucla L. Rev. 1543, 1545-52 (2011) (arguing that immigration violations are being used "as a pretext for investigating state criminal law")
191. Eagly IV, supra note 160, at 1777-84 (demonstrating the increased focus on removal proceedings by state and local authorities)
192. Igrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281, 1341-42 (2010) (noting that as a result of the 287(g) programs, "state and local police can choose whether they are acting in their crim nal capacity ...or in their administrative capacity"); Elias, supra note 148, at 1135-40 (highlighting the constitutional violations that have resulted from the cooperation of the federal government and state and local police in immigration enforcement matters).
193. Hannah Gladstein et al., Migration Policy Inst., N.Y.U. SCH. Law, Blurring The Lines: A Profile Of State And Local Police Enforcement Of Immigration Law Using The National Criminal Information Center Database, 2002-2004, at 9 (2005), http://www.migrationpolicy.org/pubs/MPI_report_Blurring_the_Lines_120805.pdf
194. see also Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179, 181 (2005) ("The nearly 800,000 police officers nationwide represent a massive force multiplier.").
195. Memorandum from Jay S. Bybee, Assistant Att'y Gen., U.S. Dep't of Justice, to John Ashcroft, Att'y Gen., U.S. Dep't of Justice (Apr. 3, 2002), available at https://www.aclu.org/files/FilesPDFs/ACF27DA.pdf. The government initially refused to release the memo, but was ultimately forced to do so under the Freedom of Information Act.
196. See Nat'l Council of La Raza v. Doj, 411 F.3d 350, 360-61 (2d Cir. 2005) (holding that the memo was not exempted from disclosure under the Freedom of Information Act).
197. Mary Beth Sheridan, INS Seeks Law Enforcement in Aid in Crackdown: Move Targets 300,000 Foreign Nationals Living in U.S. Despite Deportation Orders, Wash. Post, Dec. 6, 2001, at A25.
198. see also Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1085 (2004) (noting that this strategy was central to the "war on terror" after the 9/11 attacks).
199. Id. at 1087 n.16 (citing Minutes from the Criminal Justice Information Services Division, Advisory Policy Board Meeting 45-48 (June 4-5, 2003), which note "statements made by Kris Kobach, Office of the Attorney General").
200. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, tit. I, § 133, 110 Stat. 3009-546, 3009-563-64 (codified at 8 U.S.C. § 1357(g) (2006)).
201. 8 U.S.C. § 1357(g)(1). This would seem to further damn the notion that alternate remedies would be available for a victim of Fourth Amendment violations as a result of immigration enforcement.
202. Cf. INS v. Lopez-Mendoza, 468 U.S. 1032, 1045 (1984) (arguing that a civil remedy would still be available for victims even absent the exclusion remedy).
203. See U.S. Immigration & Customs Enforcement, U.S. Dep't of Homeland Sec., Memorandum of Agreement, http://www.ice.gov/doclib/detention-reform/pdf/287g_moa.pdf. While the agreement can be modified around the edges to suit the specific agency, it is a fairly standard form.
204. These warrants are named for the case that approved them: Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981). Although the federal government does not publish its 287(g) training manuals, a copy of the manual followed by officers in Frederick County, MD, is available online.
205. U.S. Immigration & Customs Enforcement, Participant Workbook (2004) [hereinafter FREDERICK COUNTY WORKBOOK], available at http://www.scribd.com/doc/21968724/ICE-287-g-Participant-Workbook-Search-and-Seizure.
206. Blackie's, 659 F.2d at 1222 (reasoning that, since the warrant request arose from administrative functions of civil immigration enforcement, the more stringent standards of a criminal search warrant were unnecessary)
207. see also Eagly IV, supra note 170, at 1314 (discussing Blackie's).
208. For example, an administrative search warrant was used in INS v. Delgado, 466 U.S. 210 (1984). The Frederick County training manual does draw a distinction between the requirements for criminal warrants and administrative warrants.
209. See Frederick County Workbook, supra note 179, at 5. In practice, however, broader power to enforce civil immigration laws through arrest and detention means local law enforcement can pick and choose whether they are acting as police investigating crime or administrative agents looking for aliens.
210. Eagly IV, supra note 170, at 1342
211. see also William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. Contemp. Legal issues 1, 1 (1996) (suggesting that the government's natural incentive is "to evade or exploit the procedural civil-criminal line by changing the substantive civil-criminal line"). Similarly, Professors Cox and Posner have suggested that the country's underenforcement of immigration at the border, which allows millions into the country illegally, may be by design to give the government free reign to dodge constitutional protections that would be afforded to those who would otherwise enter legally under a guest-worker program.
212. Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809, 813-14 (2007).
213. Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, ICE, http://www.ice.gov/news/library/factsheets/287g.htm.
214. Aarti Kohli et al., The Chief Justice Earl Warren Institute On Law & Soc. Policy, Secure Communities By The Numbers: An Analysis Of Demographics And Due Process 1-2 (2011), available at http://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf. This program is presently the target of a legal challenge mounted by students at the Yale Law School.
215. Mary E. O'Leary, Yale Law School Immigration Clinic Files Class Action Lawsuit Challenging Secure Communities Detainers, New Haven Reg., Feb. 22, 2012, http://www.nhregister.com/articles/2012/02/22/news/doc4f45623a99923180233858.txt.
216. See Activated Jurisdictions, ICE (Aug. 22, 2012), http://www.ice.gov/doclib/secure-communities/pdf/sc-activated.pdf (reporting that Secure Communities is active in 3,074 of 3,181 jurisdictions in the United States with plans to expand nationwide).
217. Am. Civil liberties Union of N.C. Legal Foundation & Immigration & Human Rights Policy Clinic, Univ. Of N.C., The Policies And Politics Of Local Immigration Enforcement Laws: 287(G) Program In North Carolina 29 (2009), available at http://www.law.unc.edu/documents/clinicalprograms/287gpolicyreview.pdf.
218. See, e.g., Colo. Dep't of Pub. SAFETY, REPORT OF THE GOVERNOR'S WORKING GROUP ON LAW ENFORCEMENT AND ILLEGAL IMMIGRATION 15-16 (2008), available at http://cdpsweb.state.co.us/immigration/documents/FINAL%20Report%202%20for%20Eservice.pdf (detailing Colorado state police process for contacting various databases during a traffic stop to determine if a suspect is an alien).
219. 2010 Yearbook Of Immigration Statistics, supra note 164, 94 tbl.36. To add some perspective, only 2,801 aliens were removed in 1892. Id. That number rose slowly to reach 50,924 in 1995. Id. The seven-fold increase in the last sixteen years is historically unprecedented. Id.
220. Activated Jurisdictions, supra note 184.
221. See, e.g., Julia Preston, Agents' Union Stalls Training on Deportation Rules, N.Y. Times, Jan. 7, 2012, http://www.nytimes.com/2012/01/08/us/illegal-immigrants-who-commit-crimes-focus-of-deportation.html?_r=2scp=5&sq=obama%20immigration%20enforcement&st=cse&(chronicling the debate between President Obama and the Immigration and Customs Enforcement agents' union on how best to enforce immigration laws)
222. Jim Rutenberg & Jeff Zeleny, Romney Stays on the Offense with Gingrich, N.Y. Times, Jan. 26, 2012, http://www.nytimes.com/2012/01/27/us/politics/a-grueling-day-on-the-stump-then-a-debate.html?pagewanted=1&sq=romney%20immigration%20enforcement&st=cse&scp=5 (noting the debate over immigration policies in a Republican primary debate in Florida).
223. Ala. Code § 31-13-6 (Supp. 2012).
224. Ariz. Rev. Stat. Ann. § 11-1051 (2012).
225. Ga. Code Ann. § 17-5-100 (Supp. 2012).
226. Ind. Code Ann. § 5-2-18.2 (West Supp. 2012).
227. S.C. Code Ann. § 17-13-170 (Supp. 2011).
228. Utah Code Ann. § 76-9-1009 (LexisNexis Supp. 2012). Other states have enacted laws that work at a different link on the law enforcement food chain. Tennessee amended its public safety code, requiring a procedure to verify the citizenship status of any individual who is arrested, booked, or confined for any period in any county or municipal detention facility.
229. Tenn. Code Ann. § 40-7-123(a) (Supp. 2011).
230. Several of these codes were the subject of legal challenges in Arizona v. United States, 132 S. Ct. 2492 (2012) and elsewhere.
231. See, e.g., Ga. Latino Alliance for Human Rights v. Governor of Ga., No. 11-13044, 2012 WL 3553612, at *1-2 (11th Cir. Aug. 20, 2012) (challenging provisions of the Illegal Immigration Reform and Enforcement Act of 2011)
232. Hispanic Interest Coal. of Ala. v. Governor of Ala., Nos. 11-14535, 11-14675, 2012 WL 3553613, at *1 (11th Cir. Aug. 20, 2012) (challenging provisions of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act).
233. In the first half of 2012 alone, state legislatures introduced a combined 948 bills related to immigration. See Nat'l Conference Of State Legislatures, 2012 Immigration-Related Laws And Resolutions In The States (JANUARY 1-JUNE 30, 2012), at 1 (2012), available at http://www.ncsl.org/Portals/1/Documents/immig/2012ImmigrationReportJuly.pdf. Remarkably, the report noted a drop from the 1,607 immigration laws introduced by state legislatures in 2011.
234. Id. at 2.
235. E.g., Utah Code Ann. § 76-9-1003(1) (LexisNexis Supp. 2012)
236. see also Ariz. Rev. Stat. Ann. § 11-1051(B) (2012) (requiring law enforcement to make a reasonable attempt to determine the citizenship status of an individual during any lawful stop, detention, or arrest when reasonable suspicion exists that the suspect may be an alien)
237. Ga. Code Ann. § 17-5-100(b) (Supp. 2012) (authorizing law enforcement to verify immigration status when an officer has probable cause to believe the suspect has committed a criminal violation).
238. 132 S. Ct. 2492 (2012).
239. Id. at 2507-10. Arizona began enforcing these provisions of its law after a federal injunction was lifted in September 2012.
240. United States v. Arizona, No. 10-CV-01413-PHX-SRB, 2012 WL 4076192, at *1 (D. Ariz. Sept. 18, 2012). Although the Court indicated that it will monitor actual enforcement of the Arizona law out of concern for equal protection, the Court's record of demanding equal treatment of immigrant groups is dismal.
241. See Carbado D. & Harris H., supra note 170, at 1557-65 (analyzing certain Court opinions that have "compounded Latinos' exposure to law enforcement surveillance, expanded law enforcement power and discretion, and facilitated racial profiling").
242. E.g., Ala. Code § 31-13-6(d) (Supp. 2012)
243. Ariz. Rev. Stat. Ann. § 11-1051(H) (2012). Fortunately, in the wake of the Court's Arizona decision, the Eleventh Circuit has invalidated some of Alabama's more onerous provisions, including
244. Ala. Code § 31-13-26(a), which made contracts with illegal aliens unenforceable in court.
245. See United States v. Alabama, Nos. 11-14532, 11-14674, slip op. at 56-57(11th Cir. Aug. 20, 2012) (holding that several provisions of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act were preempted by federal law). Prior to the Eleventh Circuit's decision, private citizens had exercised their own brand of "ad hoc immigration justice" by refusing to pay immigrant workers for work already done and refusing to sell groceries to individuals who could not prove their immigration status.
246. See This American Life: Reap What You Sow, Chicago Public Media (Jan. 27, 2012), available at http://www.thisamericanlife.org/radio-archives/episode/456/transcript.
247. See generally Eagly I, supra note 160
248. Elias, supra note 148. In fact, the increasing integration of criminal law and immigration law has given birth to a whole literature on "crimmigration," which even has its own blog.
249. See Crimmigration, http://www.crimmigration.com (last updated Sept. 20, 2012) (analyzing the immigration consequences of criminal violations).
250. See Hiroshi Motomura, Federal Immigration Enforcement and State and Local Arrests, 58 Ucla L. Rev. 1819, 1847 (2011) ("State and local jurisdictions and officers that see immigration enforcement as part of their law enforcement duties will be especially inclined to view civil removal as a tangible result that makes the arrest worthwhile.").
251. For that matter, it might also be admissible in a criminal trial. After all, any officer who is primarily interested in enforcing immigration policy will not be deterred by the remote threat of suppression at a criminal trial. See infra notes 214-24 and accompanying text. Such are the vagaries of the spectacular non sequitur.
252. Making matters worse is that there is little prosecutorial or judicial discretion in removal proceedings to temper the overzealousness of local law enforcement, meaning the arrest stage is what matters most in immigration enforcement. Motomura H, supra note 203, at 1836, 1847. Even with increased prosecutorial discretion, Motomura reasons, it would do little to change the perception that immigration enforcement is racially biased.
253. Id. at 1857.
254. Ariz. Rev. Stat. Ann. § 11-1051(A) (2012).
255. See Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2064 (2008) (arguing that because immigration enforcement inherently entails the exercise of significant discretion, expanding the universe of government agents engaged in immigration enforcement necessarily raises worries about ethnic and racial discrimination)
256. Janel Thamkul, The Plenary Power-Shaped Hole in the Core Constitutional Law Curriculum: Exclusion, Unequal Protection, and American National Identity, 96 Calif. L. Rev. 553, 566 (2008) (explaining that contemporary immigration policies and the judicial practices relating to those policies "have shaped the development of racism and nativism in the United States")
257. Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493, 497-98 (2001) (predicting that increased engagement by local law enforcement in immigration matters will result in discrimination).
258. The Supreme Court recently echoed some of these concerns, but declined to act on them. Arizona v. United States, 132 S. Ct. 2492, 2508-10 (2012) (stating that mandatory status checks and the possibility of prolonged detention while those checks are performed raises equal protection concerns).
259. See Carbado D., & Harris H, supra note 170, at 1586 (arguing that the federal government's plenary power to enforce immigration-outside typical constitutional constraints and combined with 287(g) agreements-allows local officers to expressly use race as a factor to determine whether a person has entered the country illegally)
260. Elias, supra note 148, at 1156 ("[I]n the twenty five years since Lopez-Mendoza, the legal and political landscape has shifted so radically and the situation of immigration respondents has changed so markedly that each of [the] three foundational precepts [set forth in Lopez-Mendoza] no longer applies.")
261. Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1007 (2010) (suggesting that racial profiling, while frowned upon in the criminal context, has long been a feature of immigration enforcement).
262. See Whren v. United States, 517 U.S. 806, 811-13 (1996) (declaring that the Supreme Court's prior decisions clearly show that subjective intentions or ulterior motives cannot invalidate police conduct in probable cause Fourth Amendment analysis). Despite this general limitation, some courts have found that the fruits of searches motivated by racial bias may be suppressed where the violation is sufficiently "egregious" to implicate "fundamental fairness."
263. See, e.g., Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006) (asserting that "exclusion of evidence is appropriate under the rule of Lopez-Mendoza if record evidence established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that the violation-regardless of its egregiousness or unfairness-undermined the reliability of the evidence in dispute")
264. Gonzalez-Rivera v. Ins, 22 F.3d 1441, 1443 (9th Cir. 1994) (holding that the stop and seizure of a vehicle driven by a deportee constituted a "bad faith and egregious violation of the Fourth Amendment" requiring suppression of the evidence obtained as a result of the stop).
265. This is not at all far-fetched. For example, Alabama police arrested a Japanese auto executive, who was on assignment at a local Honda plant, at a roadblock even though he had his passport and an international driver's license. Arian Campo-Flores & Miriam Jordan, Alabama Immigration Law Ensnares Auto Workers, Wall ST. J., Dec. 1, 2011, http://online.wsj.com/article/SB10001424052970204397704577070811936737218.html.
266. As Devon Carbado and Cheryl Harris have noted, the Department of Justice guidelines on racial profiling permit officers to use race in deciding whether to make investigatory stops at the border. Carbado D. & Harris C., supra note 170, at 1607
267. see also Civil Rights Div., U.S. Dep't Of Justice, Guidance Regarding The Use Of Race By Federal Law Enforcement Agencies 9 (2003), available at http://www.justice.gov/crt/about/spl/documents/guidance_on_race.pdf (discussing how a person's alienage is of concern in national border protection and thus suggesting that race may be considered to the extent the Constitution allows).
268. For a summary of those findings, see Letter from Thomas E. Perez, Assistant Att'y Gen., to Joseph Maturo, Jr., Mayor, Town of East Haven 2-3 (Dec. 19, 2011), available at http://www.justice.gov/crt/about/spl/documents/easthaven_findletter_12-19-11.pdf.
269. See Letter from Thomas E. Perez, Assistant Att'y Gen., to Bill Montgomery, Cnty. Att'y, Maricopa Cnty. 2 (Dec. 15, 2011), available at http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf ("Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO's policies or practices, all in violation of Section 14141.").
270. See, e.g., United States v. Farias-Gonzalez, 556 F.3d 1181, 1189 (11th Cir. 2009) (refusing to suppress the contents of the defendant's INS alien file in a criminal prosecution)
271. United States v. Oscar-Torres, 507 F.3d 224, 232 (4th Cir. 2007) (holding that fingerprints obtained for an administrative purpose not related to a criminal investigation are not subject to exclusion)
272. United States v. Olivares-Rangel, 458 F.3d 1104, 1116 (10th Cir. 2006) (stating that fingerprints obtained as part of routine booking and processing procedure are admissible evidence but that fingerprints collected to connect the defendant to additional alleged illegal activity are subject to suppression)
273. United States v. Bowley, 435 F.3d 426, 431 (3d Cir. 2006) (holding that evidence obtained from a defendant's immigration file following an illegal arrest is not subject to suppression unless an "egregious" Fourth Amendment violation has occurred)
274. United States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004) (holding that fingerprints collected to establish a defendant's identity but not used to investigate alleged criminal activity are admissible).
275. 507 F.3d 224 (4th Cir. 2007).
276. Id. at 226-27.
277. Id. at 226.
278. Prosecutions for violations of § 1326(a) are far and away the most common in the federal system, comprising fully 23% of the criminal docket in federal courts. See DHS Referred Most Federal Criminal Prosecutions in October 2011, Transactional Records Access Clearinghouse (Jan. 26, 2012), http://trac.syr.edu/immigration/reports/271/(noting § 1326 charges were the most commonly recorded lead charge in October 2011 and October 2006)
279. Illegal Reentry Becomes Top Criminal Charge, Transactional Records Access Clearinghouse (June 10, 2011), http://trac.syr.edu/immigration/reports/251/(stating § 1326 charges were the most commonly recorded lead charge in the first half of 2011).
280. Oscar-Torres, 507 F.3d at 226.
281. Id. at 231-32.
282. Id. at 232.
283. Id. at 231 (internal citation omitted).
284. See Eagly, supra note 170, at 1340-42 (chronicling two cases where a court allowed seemingly inadmissible evidence in a criminal proceeding because law enforcement had collected it as part of an administrative proceeding and in accordance with administrative procedures).
285. See Carbado D. & Harris C, supra note 170, at 1546-50, 1597-602.
286. After Arizona v. United States, 132 S. Ct. 2492 (2012), states cannot pass laws requiring that police officers effect stops based solely on immigration concerns because doing so infringes federal supremacy in immigration matters, but 287(g) programs fill that gap nicely. At any rate, the whole point of the silver platter doctrine is that it removes disincentives for officers to engage in unconstitutional conduct. Even without direct authority under state law, a police officer who takes it upon himself to aggressively pursue those he believes to be illegal immigrants knows that his goals will not be frustrated even if he violates the Fourth Amendment, the Supremacy Clause, or any other constitutional constraint on his conduct.
287. See Laurin JE, supra note 20, at 674-76 (discussing "remedial diminishment" in Fourth Amendment doctrine and the use of qualified immunity to narrow the exclusionary rule's reach).
288. In arguing that the exclusionary rule should apply in civil immigration proceedings, we join Stella Elias, among others. See Elias, supra note 148, at 1115.
289. 524 U.S. 357 (1998).
290. Id. at 357-58.
291. To clarify terms, "probation" usually refers to a constraint on freedom enforced as a sentence in itself. "Parole" usually refers to a constraint on freedom enforced as a condition of early release from a prison term. Although the Court in Scott was confronted with a parolee, subsequent courts have assumed that Scott applies equally to probation revocation hearings.
292. See, e.g., United States v. Armstrong, 187 F.3d 392, 394-95 (4th Cir. 1999) (stating that "[f]or purposes of the rule established in Scott ...parole and supervised release are not just analogous, but virtually indistinguishable" because "the costs and benefits of applying the exclusionary rule to revocation proceedings are almost identical" in these contexts).
293. But see State v. Scarlet, 800 So. 2d 220, 221-22 (Fla. 2001) (holding that the exclusionary rule applies to probation revocation hearings because they are very different from parole revocation hearings)
294. Logan v. Commonwealth, 666 S.E.2d 346, 347 (Va. 2008) (holding that the exclusionary rule applies to probation revocation hearings when an officer acts in bad faith).
295. Scott, 524 U.S. at 359-60.
296. Id. at 360. Immediately following his arrest, Scott gave the law enforcement officers keys to his home, which was owned by his mother. Id. The officers waited for his mother to arrive before searching. Id. While the officers did not request or receive consent to search, Scott's mother did show them to her son's bedroom. Id.
297. Id. at 360-61.
298. Id. at 360.
299. Id. at 360-61.
300. Id. at 361-62.
301. Id. at 359.
302. Id. at 367.
303. Id. at 368 (citation omitted) (internal quotation marks omitted).
304. Id. (citation omitted) (internal quotation marks omitted).
305. C.R Bloom & Fentin DH, supra note 3, at 63, 67-70 (discussing law enforcement officers' incentives for violating the Fourth Amendment).
306. See supra note 110 and accompanying text.
307. See Jordan Guin, Eight Law Enforcement Agencies Conduct Parole and Probation Searches, Lodi News-Sentinel, May 21, 2011, http://www.lodinews.com/news/article_34eaea0d-bdcc-584e-9790-a5bcfc7dc5c8.html (detailing a task force performing parole and probation sweeps)
308. see also State Of N.J., Edward Byrne Memorial Justice Assistance Grant Fy 2011 Formula Program (2011), available at http://www.state.nj.us/lps/crimeplan/pdfs/JAG-2011_Program-Narrative_Attachement-1.pdf (reporting on a New Jersey program targeting parolees and probationers)
309. Wis. Dep't. Of Corrections, The 2008/2009 Study Of Probation And Parole Revocation (2009), available at http://www.wi-doc.com/PDF_Files/Revocation%20Study_Full%20Report%20-%20FINAL.pdf (examining parole enforcement policy)
310. Attorney General Cooper Calls for Giving Probation Data to Law Enforcement, Island Gazette, May 6, 2008, http://www.islandgazette.net/news-server1/index.php?option=com_content&view=article&id=4621:attorney-general-cooper-calls-for-giving-probation-data-to-law-enforcement&catid=18:crime&Itemid=70 (explaining that North Carolina's Attorney General set a policy of keeping closer track of parolees)
311. Hope Probation, Haw. St. Judiciary, http://www.courts.state.hi.us/special_projects/hope/about_hope_probation.html (describing Hawai'i's high-intensity supervision program).
312. As Christopher Slobogin has pointed out: "In a large number of cases involving questionable stops and searches, the police do not make an arrest, either because they never intended to do so or because they find nothing " Slobogin C, supra note 130, at 374-75 (footnote omitted). With the promise that any evidence seized will at least be admissible in a parole hearing, officers have every incentive to engage in patently illegal searches in neighborhoods and among populations where their targets are statistically more likely to be on parole or probation.
313. Morissey v. Brewer, 408 U.S. 471, 479 (1972).
314. In 2009, 658,800 parolees were on parole for one year or more, while only 33,579 were on parole for less than one year. LAUREN E. GLAZE et al., Bureau Of Justice Statistics, U.S. Dep't Of Justice, Ncj 231674, Probation And Parole In The United States, 2009, at 40 app. tbl.19 (2010) [hereinafter PROBATION AND PAROLE 2009]. This means that over 80% of parolees had a year or more sentence left to serve in prison if their parole was violated.
315. Elkins v. United States, 364 U.S. 206, 221-22 (1960).
316. Justice Jackson, fresh from his stint as chief prosecutor at Nuremberg, pointed out the consequences of such police practices, noting that "[u]ncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government."
317. Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting). He went on to observe that "one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and selfreliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police."
318. Id. at 180-81.
319. See, e.g., ROBERT S. WARSHAW, Tenth Quarterly Report Of The Independent Monitor For The Oakland Police Department 32, 55-57 (2012) (finding that the Oakland Police Department is routinely omitting the "reason for encounter" in reports of stops, that "the number of searches of persons within one sub-group is significantly higher than others," and highlighting the fact that all "six arrests that were directly related to a subject's status as a parolee or probationer" during the reporting period involved black or Hispanic arrestees)
320. see also Sam J. Ervin Jr., The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment, 1983 Sup. Ct. Rev. 283, 297. As Carol Steiker has pointed out, the fact of historical and contemporary racial bias in law enforcement has played a central role in the courts' treatment of the Fourth Amendment and the exclusionary rule.
321. Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 838-44 (1994). The simple fact that Fourth Amendment violations are a matter of routine for poor and minority citizens puts the lie to claims made by Richard Posner and others that "the typical [Fourth Amendment] violation consists not of harassment of the innocent but of overzealous enforcement against the guilty."
322. Richard A. Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49, 59
323. see also infra notes 292-93 and accompanying text.
324. 547 U.S. 843 (2006).
325. Id. at 849-50.
326. 465 U.S. 420 (1984).
327. Id. at 432.
328. See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 373-74 (1998) (Souter, J., dissenting) (stating that "police and parole officers routinely cooperate" and discussing cases in which such cooperation took place).
329. Byars v. United States, 273 U.S. 28, 33-34 (1927).
330. See, e.g., Alaska Dep't Of Corr., Probation Officer And Private Person Searches (2009), available at http://www.dps.state.ak.us/APSC/docs/legalmanual/NPROBATIONOFFICERSANDPRIVATEPERSONSEARCHES.pdf ("As a condition of parole or probation, the Court may order that the defendant subject his person, residence or vehicle to searches that will be conducted by his/her probation officers.").
331. Scott, 524 U.S. at 373 (Souter, J., dissenting)
332. see, e.g., People v. Stewart, 610 N.E.2d 197, 206 (Ill. App. Ct. 1993) (detailing the police officer's knowledge that the victim of an illegal traffic stop and search was on probation). The electronic monitoring industry has expanded since the mid-1980s, making it all the more likely that local police know the whereabouts of local felons. By 2003, Texas, Florida, and New Jersey all used global positioning satellites (GPS) to track parolees' moves.
333. Joan Petersilia, When Prisoners Come Home: Parole And Prisoner Reentry 194 (2003).
334. For another plausible solution, see Martha Worner, Note, Pennsylvania Board of Probation and Parole v. Scott: The Taking of a Parolee's Fourth Amendment Right to Privacy, 51 Baylor L. Rev. 1115, 1144-48 (1999). Worner proposes adoption of the awareness standard, under which an officer's illegal search and seizure would be subject to exclusion if he was aware that the suspect was on parole.
335. Id. at 1144-45.
336. Worner argues that the awareness standard would further the Court's deterrence objective, while maintaining integrity in parole-search practices.
337. Id. at 1147-48.
338. In the 2010 Census, about 14% of the population identified themselves as "black." Black Population, supra note 30, at 3 tbl
339. However, a disproportionate 39% of the parole population in 2010 was black. Probation And Parole 2010, supra note 30, at 43 app. tbl.15. Although whites constituted about 75% of the entire United States population in 2010, they only made up 42% of the parole population.
340. White Population, supra note 30, at 3 tbl.1
341. Probation And Parole 2010, supra note 30, at 43 app. tbl.15.
342. Sean Gardiner, Stop-and-Frisks Hit Record in 2011, Wall ST. J., Feb. 14, 2012, http://online.wsj.com/article/SB10001424052970204795304577221770752633612.html.
343. 447 U.S. 727 (1980).
344. See id. at 729-31
345. United States v. Payner, 434 F. Supp. 113, 118-22 (N.D. Ohio 1977),
346. Rev'd, 447 U.S. 727 (1980)
347. United States v. Baskes, 433 F. Supp. 799, 801-02 (N.D. Ill. 1977).
348. Payner, 434 F. Supp. at 118-19.
349. see also Baskes, 433 F. Supp. at 801 ("Casper arranged an assignation for Wolstencroft with a certain Sybil Kennedy.").
350. Baskes, 433 F. Supp. at 801 ("Ms. Kennedy succeeded in getting Wolstencroft to leave his briefcase, containing the desired documents, in her apartment. She then detained Wolstencroft outside the apartment during a dinner engagement, and engaged in sexual intercourse for compensation.").
351. According to facts found by the district court in Payner, the plan originally approved by Jaffe entailed both burglary and theft. Payner, 434 F. Supp. at 119 n.15. As it turned out, no unlawful entry was necessary because Kennedy provided Casper with a key to her apartment.
352. Id. at 119.
353. Payner, 434 F. Supp. at 130 n.66.
354. Id. at 119-20.
355. See id. at 122.
356. Payner, 447 U.S. at 739 (Marshall, J., dissenting)
357. Payner, 434 F. Supp. at 119, 121 n.40
358. see also Payner, 447 U.S. at 730 (quoting the trial court's finding that, "the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties").
359. Payner, 447 U.S. at 730.
360. Payner, 434 F. Supp. at 132-33.
361. Id. at 130-31.
362. Payner, 447 U.S. at 739-42 (Marshall, J., dissenting).
363. See Gray D, supra note 19, at 74 (summarizing the District Court's findings that "the rule on standing was being affirmatively exploited").
364. There is, of course, the possibility that such a policy might be the target of a civil action. Unfortunately, as Jennifer Laurin has recently pointed out, the threat of civil sanction in Fourth Amendment cases against individual officers or their agencies is far too weak to provide much discouragement.
365. See Laurin J, supra note 20, at 712-13 (explaining that the Court has limited the potential rights-expanding power of civil remedies by adopting limitations from constitutional tort doctrine).
366. Probation And Parole 2010, supra note 30, at 40 app. tbl.12.
367. Id. at 42 app. tbl.14. While this is less than the total in 2000, the overall parole population decreased between 2000 and 2010.
368. Id. at 2.
369. Jeremy Travis & Sarah Lawrence, Beyond The Prison Gates: The State Of Parole In America 21 (2002), available at http://www.urban.org/UploadedPDF/310583_Beyond_prison_gates.pdf.
370. Id. at 22.
371. See id. at 21, 24 (citing BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NATIONAL PRISONER STATISTICS (NPS-1) SERIES) (emphasizing the explosive growth in parole violations from 1980 to 2000). For a full list of Bureau of Justice Statistics sources used in this report,
372. see id. at 3. Based on Figure 15 of this report, approximately 25,000 prisoners returned to prison in 1980, and just under 200,000 returned in 2000.
373. Id. at 21 fig.15.
374. Paul Guerino et al., Bureau Of Justice Statistics, U.S. Dep't Of Justice, NCJ 236096, Prisoners In 2010, at 25 app. tbl.11 (2011).
375. See Worner M, supra note 259, at 1138-40 (offering an illustration of the operation of the silver platter doctrine in the parolee context).
376. Robert S. Warshaw, Eighth Quarterly Report Of The Independent Monitor For The Oakland Police Department (2012).
377. Id. at 87-88.
378. Id. at 88.
379. See Aaron Sankin, Oakland Police Department Only Weeks Away From Being Placed into Federal Control, Huffington Post (Jan. 27, 2012, 7:20 PM), http://www.huffingtonpost.com/2012/01/27/oakland-police-department_n_1237785.html ("In 2000, a rogue group of Oakland police officers, calling themselves the 'Rough Riders,' were found to have planted evidence, used excessive force and falsified police reports. As part of a negotiated settlement three years later, the city was ordered to take 51 specific steps toward reform or else lose operational control of the department.").
380. Warshaw R, supra note 288, at 84-89.
381. Id. at 84.
382. Id. at 85.
383. During the reporting period for the Tenth Quarterly Report, Warshaw identified six arrests that were "directly related to a subject's status as a parolee or probationer." Robert S. Warshaw, Tenth Quarterly Report Of The Independent Monitor For The Oakland Police Department 32 (2012). Five of the six subjects were black, and one was Hispanic. Id. These encounters led to searches of the subjects' person in all six incidents, as well as searches of three of their residences. Id. Another led to the warrantless search of a residence that appeared to have no connection to the arrestee or the encounter that led to his arrest. Id. During that incursion, police drew their weapons on a woman and her two-year-old child who likewise do not appear to have had any connection to the arrestee
384. Warshaw R, supra note 288, at 89.
385. Id. Warshaw opined that "[these] practice[s] can have a chilling effect on policecommunity relations, and resentment over these inquires can-and does-result in citizen complaints." Id.
386. More such reports of abuse are sure to come as activists increase their monitoring of law enforcement officers in coming years as provisions of state laws allowing local law enforcement officers to check the immigration status of suspects come into effect. See David Schwartz & Tim Gaynor, Police Begin Enforcing Controversial Arizona Immigration Measure, REUTERS (Sept. 19, 2012, 11:00 PM), http://www.reuters.com/article/2012/09/20/us-usa-immigration-arizona-idUSBRE88I1FB20120920 (describing how Arizona activists plan to continue challenging Arizona's law).
387. United States v. Janis, 428 U.S. 433, 459-60 (1976).
388. Stone v. Powell, 428 U.S. 465, 494-96 (1976).
389. Mertens WJ. & Wasserstrom S, supra note 135, at 388.
390. New York v. Harris, 495 U.S. 14, 32 (1990) (Marshall, J., dissenting).
391. see also Sharon L. Davies, The Penalty of Exclusion-A Price or Sanction?, 73 S. Cal. L. Rev. 1275, 1319 (2000) (asserting that restrictions on the use of the exclusionary rule penalty "send a clear message that many constitutionally defective evidence-gathering acts will go unpunished" and noting that some police departments have taken this as a "'green light' to lawless action").
392. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).