Warranted: the exclusionary rule

Today is the final post on warrants—at least for now.

I’ll start with a story. In 1957, Cleveland police were looking for evidence of a bombing, and although Dollree Mapp wasn’t the suspect, they believed she might have evidence in her home. But she refused to let them in. So they returned a few hours later, waving a paper and claiming it was a search warrant. She snatched the paper and shoved it down the front of her dress; they wrestled her and took the paper back. With Mapp in cuffs, they proceeded to search her house. Inside a trunk in the basement they found pornographic books and pictures (the property, Mapp said, of a previous tenant). They arrested Mapp and prosecuted her for possession of illegal pornography. No warrant was ever produced at trial. It’s pretty clear none ever existed.

Mapp appealed her conviction all the way to the Supreme Court, arguing that because police did not have a warrant, the search violated her 4th Amendment rights. Therefore, she said, the evidence should be thrown out of court and her conviction overturned.

In Mapp v. Ohio, SCOTUS agreed. They articulated the exclusionary rule, which says that illegally obtained evidence can’t be used in court. This is a powerful rule because it means that sometimes people we know are guilty will still go free because the cops screwed up. But, the Court said, the rule was the only realistic way to deter police misconduct and protect constitutional rights.

As you might imagine, the exclusionary rule has been unpopular among a lot of people. Over the years, SCOTUS has carved out a number of exceptions to the rule. But the heart of the rule remains intact.

And this concludes our whirlwind tour of warrants!


Warranted: general requirements

For the next few weeks we’ll be tackling a big subject: warrants. This week we’ll talk about general warrant requirements, next week is arrest warrants, and the following week the focus will be on search warrants. Finally, we’ll discuss what happens if police violate the warrant requirements.

The part of the US Constitution that applies here is the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Okay, fine. So the amendment says that we have the right to be free from unreasonable searches and seizures. Great. And if the police want to get a warrant, they need probable cause.

So first off, what’s a search or seizure? Well, a search is government intrusion into a place or thing in which the owner has a reasonable expectation of privacy. If a cop overhears my phone conversation while I’m sitting at the adjacent table in Starbucks, that’s not a search because I can’t reasonably expect privacy. But if she grabs my phone and starts scrolling through my texts, that is probably a search.

A seizure is a meaningful interference with property or with a person’s freedom. If a cop tows my car away, that’s a seizure. If she slaps cuffs on me and hauls me off to jail? Also a seizure.

Great. But, um, what’s probable cause? The courts have been reluctant to define it too precisely, but basically it means there’s enough information that a reasonable person could deduce that evidence or contraband is likely in a particular location or that a specific person has committed a crime. It’s more than a hunch, more even than a good guess, but it’s far less than beyond a reasonable doubt, which is the standard of proof required for criminal convictions.

In simplest terms, the 4th Amendment says that in order to search or seize property or arrest someone, a police officer must have probable cause. And she must present her evidence in a sworn statement to a neutral party—a magistrate or judge—who will determine if probable cause does indeed exist. Furthermore, the warrant has to be specific about the place that’s being searched and what’s being searched for, or the identity of the person who can be arrested.

Now as it turns out, the use of warrants is more complicated than that. We’ll get to some particulars in the next two weeks.

Another thing to note now, however, is the procedure for obtaining warrants. The cop can show up in court. But almost all jurisdictions allow phone warrants as well, in which the transaction occurs via phone instead of in person. This is helpful if time is of the essence, e.g., the evidence is likely to disappear.


Johnny was trying really hard to follow the rules of the road, but when he glanced in his rearview mirror, his stomach clenched. Flashing red and blue lights. Shit.

He pulled to the side of the highway, rolled down his window, and cut the engine. And when the cop walked to his window, Johnny even managed a shaky smile. “Good evening, officer.”

The cop didn’t smile back. “License, registration, insurance.”

Johnny handed over the documents and watched as the cop inspected them. Then the officer grunted softly and handed them back. “Everything looks in order. But you were following that other car pretty closely. It’s important to maintain a safe stopping distance. I could cite you for that.”

“Uh…. Sorry?”

“All right. I’ll let it go this time. But be more careful.”

Johnny’s lungs loosened enough for him to breathe. “Thanks, officer. I appreciate it. I’ll definitely be more careful.”

“Good.” The cop started to step away, then stopped and turned back to the window. “You don’t mind if I take a look in your trunk, do you?”

Trying not to choke, Johnny clearly pictured the ten pounds of methamphetamine currently sitting in the trunk. “Uh….”

So what can Johnny do?

Let’s begin by establishing one important thing: unless there are additional circumstances I haven’t mentioned in that scenario, the cop doesn’t have legal authority to search the trunk without consent. The Supreme Court has held that search warrants are virtually never needed for automobile searches, but law enforcement still generally needs probable cause to believe that the vehicle contains evidence or contraband. The fact that Johnny was following another car too closely doesn’t tell us anything about what may be in his vehicle; it certainly doesn’t give the cop probable cause.

So if the cop can’t force a search, is he out of luck? Nope. He can still ask Johnny for permission to look. That’s called a consent search, and police can ask for them any time they want to. But because it is a consent search, Johnny can refuse. His refusal alone won’t be enough to establish probable cause for the search. So if Johnny says no, the cop needs to let him continue on his journey. Lucky Johnny!

But here’s the rub—the cop doesn’t need to tell Johnny he has the right to refuse. This differentiates searches from interrogations, where the Miranda decision holds that suspects do have to be informed of their rights. Most people don’t know these details, and police often strongly hint that the subject needs to comply.

This tactic works well. Police find drugs via consent searches all the time, as in this recent example. Or this one. Why on Earth would someone with $3 million worth of meth in the trunk allow police to search his car? Because he thinks he has no choice.

One other twist on this situation. After the initial traffic stop, something might raise the officer’s suspicions that something is going on. Maybe the driver appears unduly nervous. If the cop has reasonable suspicion (which is less than probable cause) that the car contains something it shouldn’t, he can briefly extend the detention. This can last long enough to bring in a drug-sniffing dog and allow the dog to smell the car’s the exterior. If the dog alerts, that gives enough evidence to constitute probable cause, and now police can conduct a full search.

As for Johnny? I’d advise him to just say no.


When rights aren’t rights

Shaun was just about to clock out after a long day at work when Marge, his asshole manager, pounced on him. “Inspection time!” she sang as she shoved a small plastic cup into his hand.

He frowned at it. “What’s this?”

“Collection container, of course. Go pee in it. And while you’re doing that, I’ll be going through the contents of your locker. Hope you don’t have any drugs in you or on you!”

Shaun never used drugs. But his locker contained his backpack, and his backpack contained a set of rather, well, private photos his girlfriend had given him that morning. He’d been looking forward to examining the photos closely after he got home from work.

Marge grinned as if today was the most wonderful day of her life.

“You can’t do this to me!” Shaun said. “It’s unconstitutional!”

Is Shaun right? Or is he going to have to pee in a cup and let Marge paw through his personal property if he wants to keep his job?

Let’s begin by clarifying which part of the US Constitution is in question—the 4th Amendment, which says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It looks as if Shaun’s got a good point, right? Marge’s behavior appears to be an unreasonable search, and she certainly didn’t have a warrant based upon probable cause.

But there’s a problem: the 4th Amendment (and the rest of the Bill of Rights) limits only the actions of the government. It does not apply at all to individuals or organizations that aren’t a part of or agents of the government.

When it was originally written in the 18th century, the Bill of Rights applied only to the federal government and not to the states. But that changed by the 20th century, when the US Supreme Court held that the “due process” language of the 14th Amendment—which does specifically include states—should be interpreted to mean that much of the Bill of Rights now applies to states as well. This is called the Incorporation Doctrine. It’s an interesting legal trick, made even more intriguing by the fact that SCOTUS (the Supreme Court of the US) has refused to incorporate the Bill of Rights in its entirety. Bits and pieces of the Bill of Rights have never been incorporated and do not apply to states. The most notable of these excluded bits, perhaps, is the right to a grand jury.

But the entire 4th Amendment has been incorporated, which means state (and local) governments as well as the federal government must abide by its rules.

What this means for Shaun is that if he and Marge are federal employees, he’s probably correct in his assertion of a constitutional violation. Ditto if he and Marge work for any state or local governmental agency, including public schools. But if they work for a private company, Shaun is out of luck—the 4th Amendment has no bearing at all in that case.

I’ve focused here on the 4th Amendment, but it’s important to note that the general principles apply to the rest of the Constitution as well. Unless an action is taken by a government agent acting within the scope of her employment (i.e., as part of her job), the Constitutional rights are irrelevant.