PART II
POLICE AS A STANDING ARMY
It is largely forgotten that the war for American independence was initiated in large part by the British Crown’s practice of using troops to police civilians in Boston and other cities.[244] Professional soldiers used in the same ways as modern police were among the primary grievances enunciated by Jefferson in the Declaration of Independence. (“[George III] has kept among us standing armies”; “He has affected to render the military independent of and superior to the civil power”; “protecting them, by a mock trial….”).[245] The duties of such troops were in no way military but involved the keeping of order and the suppression of crime (especially customs and tax violations).
Constitutional arguments quite similar to the thesis of this article were made by America’s Founders while fomenting the overthrow of their government. Thomas Jefferson proclaimed that although Parliament was supreme in its jurisdiction to make laws, “his majesty has no right to land a single armed man on our shores” to enforce unpopular laws.[246] James Warren said that the troops in Boston were there on an unconstitutional mission because their role was not military but rather to enforce “obedience to Acts which, upon fair examination, appeared to be unjust and unconstitutional.”[247] Colonial pamphleteer Nicholas Ray charged that Americans did not have “an Enemy worth Notice within 3000 Miles of them.”[248] “[T]he troops of George the III have cross’d the wide atlantick, not to engage an enemy,” charged John Hancock, but to assist constitutional traitors “in trampling on the rights and liberties of [the King’s] most loyal subjects …”[249]
The use of soldiers to enforce law had a long and sullied history in England and by the mid-1700s were considered a violation of the fundamental rights of Englishmen.[250] The Crown’s response to London’s Gordon Riots of 1780 — roughly contemporary to the cultural backdrop of America’s Revolution — brought on an immense popular backlash at the use of guards to maintain public order.[251] “[D]eep, uncompromising opposition to the maintenance of a semimilitary professional force in civilian life” remained integral to Anglo-Saxon legal culture for another half century.[252]
Englishmen of the Founding era, both in England and its colonies, regarded professional police as an “alien, continental device for maintaining a tyrannical form of Government.”[253] Professor John Phillip Reid has pointed out that few of the rights of Englishmen “were better known to the general public than the right to be free of standing armies.”[254] “Standing armies,” according to one New Hampshire correspondent, “have ever proved destructive to the Liberties of a People, and where they are suffered, neither Life nor Property are secure.”[255]
If pressed, modern police defenders would have difficulty demonstrating a single material difference between the standing armies the Founders saw as so abhorrent and America’s modern police forces. Indeed, even the distinctions between modern police and actual military troops have blurred in the wake of America’s modern crime war.[256] Ninety percent of American cities now have active special weapons and tactics (SWAT) teams, using such commando-style forces to do “high risk warrant work” and even routine police duties.[257] Such units are often instructed by active and retired United States military personnel.[258]
In Fresno, California, a SWAT unit equipped with battering rams, chemical agents, fully automatic submachine guns, and ‘flashbang’ grenades roams full-time on routine patrol.[259] According to criminologist Peter Kraska, such military policing has never been seen on such a scale in American history, “where SWAT teams routinely break through a door, subdue all the occupants, and search the premises for drugs, cash and weapons.”[260] In high-crime or problem areas, police paramilitary units may militarily engage an entire neighborhood, stopping “anything that moves” or surrounding suspicious homes with machine guns openly displayed.[261]
Much of the importance of the standing-army debates at the ratification conventions has been overlooked or misinterpreted by modern scholars. Opponents of the right to bear arms, for example, have occasionally cited the standing-army debates to support the proposition that the Framers intended the Second Amendment to protect the power of states to form militias.[262] Although this argument has been greatly discredited,[263]it has helped illuminate the intense distrust that the Framers manifested toward occupational standing armies. The standing army the Framers most feared was a soldiery conducting law enforcement operations in the manner of King George’s occupation troops — like the armies of police officers that now patrol the American landscape.
THE SECOND AMENDMENT
The actual intent of the Second Amendment — that it protect a right of people to maintain the means of violently checking the power of government — has been all but lost in modern American society.[264] Modern policing’s increasing monopoly on firepower tends to undermine the Framers’ intent that the whole people be armed, equipped, and empowered to resist the state. Many police organizations lobby incessantly for gun control, even though the criminological literature yields scant empirical support for general gun control as a crime-prevention measure.[265]
Nor is there much legitimacy to the claim that professional police are more accurate or responsible with firearms than the armed citizenry intended by the Framers. To this day, civilians shoot and kill at least twice as many criminals as police do every year,[266] and their ‘error rate’ is several times lower.[267] In a government study of handgun battles that lead to officer injuries, it was found that police who fired upon their killers were less than half as accurate as their civilian, nonprofessional, assailants.[268]
Moreover, police seem hardly less likely to misuse firearms than the general public.[269] In New York City, where private possession of handguns has been virtually eliminated for most civilians, problems with off-duty police misusing firearms have repeatedly surfaced.[270] Los Angeles police have been found to fire their weapons inappropriately in seventy-five percent of cases.[271] Between early 1989 and late 1992, more than one out of every seven shots fired by Washington, D.C. police officers was fired accidentally.[272]
THE THIRD AMENDMENT
Although standing armies were not specifically barred by the final version of the Constitution’s text, some authorities have pointed to the Third Amendment[273] as a likely fount for such a conceptual proposition.[274] Additionally, the Amendment’s proscription of quartering troops in homes might well have been interpreted as a general anti-search and seizure principle if the Fourth Amendment had never been enacted.[275]The Third Amendment was inspired by sentiments quite similar to those that led to passage of the Second and Fourth Amendments, rather than fear of military operations. Writing in the 1830s, Justice Story regarded the Third Amendment as a security that “a man’s house shall be his own castle, privileged against all civil and military intrusion.”[276]
The criminal procedure concerns that dominated the minds of the Framers of the Bill of Rights were created not only before the Revolution but also after it. In the five years following British surrender, the independent states vied against each other for commercial advantage, debt relief, and land claims. Conflict was especially fierce between the rival settlers of Pennsylvania and Connecticut on lands in the west claimed simultaneously by both states.[277] Both states sent partisan magistrates and troops into the region, and each faction claimed authority to remove claimants of the rival state.[278] Magistrates occasionally ordered arrest without warrant, turned people out of their homes, and even ordered submission to the quartering of troops in homes.[279] In 1784, a Pennsylvania grand jury indicted one such magistrate and forty others for abuse of their authority.[280] Many agents had to be arrested before the troubles finally ended in 1788 — the very moment when the Constitution was undergoing its ratification debates.[281] These troubles, and not memories of life under the Crown, were fresh in the minds of the Framers who proposed and ratified the Bill of Rights.
The Third Amendment’s proscription of soldiers quartered in private homes addressed a very real domestic concern about the abuse of state authority in 1791. This same fear of an omnipresent and all-controlling government is hardly unfounded in modern America. Indeed, the very evils the Framers sought to remedy with the entire Bill of Rights — the lack of security from governmental growth, control and power — have come back to haunt modem Americans like never before.[282]
THE RIGHT TO BE LEFT ALONE
The ‘police state’ known by modern Americans would be seen as quite tyrannical to the Framers who ratified the Constitution. If, as Justice Brandeis suggested, the right to be left alone is the most important underlying principle of the Constitution,[283] the cop-driven model of criminal justice is anathemic to American constitutional principles. Today a vast and omnipotent army of insurgents patrols the American landscape in place of grand juries, private prosecutors, and the occasional constable. This immense soldiery is forever at the beck and call of whatever social forces rule the day, or even the afternoon.[284]
THE FOURTH AMENDMENT
Now to the Fourth Amendment. The Amendment reads: “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.”[285] This protection was clearly regarded as one of the more important provisions of the Bill of Rights during debates in and out of Congress prior to ratification.[286] To this day, the Amendment is probably the most cited constitutional provision in challenges to police action.
The cold, hard reality, however, is that the interest protected by the amendment — security from certain types of searches and seizures — has been drastically scaled back since 1791. In saying this, I am mindful that there are those among the highest echelons of the bench and academy who claim that current Fourth Amendment law is more protective than the Framers intended.[287] Indeed, there are those claiming the mantles of textualism and originalism who would decrease Fourth Amendment rights even further.[288] The ever-influential Akhil Amar, for example, has argued that the Fourth Amendment’s text does not really require warrants but merely lays out the evidentiary foundation required to obtain warrants.[289] Amar joins other “originalist” scholars who emphasize that the only requirement of the Fourth Amendment’s first clause (“The right of the people to be secure in their persons, papers, and effects from unreasonable searches and seizures shall not be violated”) is that all searches and seizures be “reasonable.”[290] The warrant requirement pronounced in many Supreme Court opinions, according to Amar, places an unnecessary burden upon law enforcement and should be abandoned for a rule Amar considers more workable — namely civil damages for unreasonable searches after the fact as determined by juries.
This type of “originalism” has appealed to more than one U.S. Supreme Court justice,[291] at least one state high court,[292] and various legal commentators.[293] Indeed, it has brought a perceivable shift to the Supreme Court’s Fourth Amendment jurisprudence.[294] Even the U.S. Justice Department has adopted this argument as its own in briefs filed in the U.S. Supreme Court arguing for elimination of the warrant requirement.[295]
The problem with this line of interpretation is that it does not square with the original view of the Framers. Even the most cursory examination of history reveals that law enforcers of the Founding Era, whether private persons, sheriffs or constables, were obligated to procure warrants in many circumstances that modern courts do not require warrants.[296] The general rule that warrants were required for all searches and seizures except those involving circumstances of the utmost urgency seems so well settled at the time of ratification that it is difficult to imagine a scholar arguing otherwise.[297] But Professor Amar does. “Supporters of the warrant requirement,” the professor writes, “have yet to find any cases” enunciating the warrant requirement before the Civil War.[298]
Perhaps Amar has overlooked the 1814 case of Grumon v. Raymond, in which the Connecticut Supreme Court held both a constable, who executed an improper search warrant, and a justice of the peace who issued the warrant, civilly liable for trespass.[299] The court in Grumon clearly stated that the invalidity of the search warrant left the search’s legality “on no better ground than it would be if [the search had been pursuant to] no process.”[300] Or maybe Amar is unfamiliar with the 1807 case of Stoyel v. Lawrence, holding a sheriff liable for executing a civil arrest warrant after the warrant’s due date and declaring that the warrant “gave the officer no authority whatever, and, consequently, formed no defence”;[301] or the 1763 Massachusetts case of Rex v. Gay, acquitting an arrestee for assaulting and beating a sheriff who arrested him pursuant to a facially invalid warrant;[302] or Batchelder v. Whitcher, holding an officer liable for ordering the seizure of hay by an unsealed warrant in 1838;[303] or Conner v. Commonwealth, in which the Pennsylvania Supreme Court concluded in 1810 that if the requirement of warrants based on probable cause could be waived merely to allow constables to more easily arrest criminals, “the constitution is a dead letter.”[304]
Even the cases Amar cites for the proposition that search warrants were not required under antebellum Fourth Amendment jurisprudence do not squarely support such a proposition.[305] Most of them merely repeat the “warrant requirement” of the common law and find that their given facts fit within a common law exception.[306] Similarly, the cases Amar cites that interpret various Fourth-Amendment equivalents of state constitutions by no means indicate that Founding-era law enforcers could freely search and seize without warrant wherever it was “reasonable” to do so. [307]
WARRANTS A FLOOR, NOT A CEILING
Under Founding-era common law, warrants were often considered as much a constitutional floor as a ceiling. Warrants did provide a defense for constables in most trespass suits, but were not good enough to immunize officials from liability for some unreasonable searches or seizures.[308] The most often-cited English case known to the Framers who drafted the Fourth Amendment involved English constabulary who had acted pursuant to a search warrant but were nonetheless found civilly liable for stiff (punitive, actually) damages.[309]
For more than 150 years, it was considered per se unconstitutional for law enforcers to search and seize certain categories of objects, such as personal diaries or private papers, even with perfectly valid warrants.[310] Additionally, Fourth Amendment jurisprudence prohibited the government from seizing as evidence any personal property which was not directly involved in crime, even with a valid warrant.[311] The rationale for this “mere evidence” rule was that the interests of property owners were superior to those of the state and could not be overridden by mere indirect evidentiary justifications.[312] This rule, like many other obstacles to police search and seizure power, was discarded in the second half of the twentieth century by a Supreme Court much less respectful of property rights than its predecessors.[313]
PRIVATE PERSONS AND THE FOURTH AMENDMENT
Under the Founders’ Model, a private person like Josiah Butler, who lost twenty pounds of good pork under suspicious circumstances in 1787, could approach a justice of the peace and obtain a warrant to search the property of the suspected thief for the lost meat.[314] Private individuals applied for many or most of the warrants in the Founders’ era and even conducted many of the arrests.[315] Even where sworn constables executed warrants, private persons often assisted them.[316] To avoid liability, however, searchers needed to secure a warrant before acting.[317] False arrest was subject to strict liability.[318]
The Founders contemplated the enforcement of the common law to be a duty of private law enforcement, and assumed that private law enforcers would represent their interests with private means. However, the Founders viewed private individuals executing law enforcement duties as “public authority” and thus intended for the Fourth and Fifth Amendments to apply to such individuals when acting in their law enforcement capacities.[319] Consequently, the Supreme Court’s 1921 decision in Burdeau v. McDowell[320] — often cited for the proposition that the Fourth Amendment applies only to government agents — was almost certainly either wrongly decided or wrongly interpreted by later courts.[321]
Some of the earliest English interpretations of the freedom from search and seizure held the protection applicable to private citizens as much as or more so than government agents.[322] Massachusetts and Vermont were apparently the first states to require that search and arrest warrants be executed by sworn officers.[323] New Hampshire adopted the same rule in 1826, more than a generation after the Bill of Rights was ratified.[324] It is likely that some states allowed private persons to execute search warrants well into the nineteenth century.
Because many Founding-era arrests and searches were executed by private persons, and early constables needed the assistance of private persons to do their jobs, the Fourth Amendment was almost certainly intended for application to private individuals. Burdeau cited no previous authority for its proposition in 1921, and early American cases demonstrate an original intent that the Fourth Amendment apply to every searcher acting under color of law.[325] On the open seas, most enforcement of prize and piracy laws was done by “privateers” acting for their own gain but who were held accountable in court for their misconduct.[326]
Later courts have taken this holding to mean that “a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment.” Walter v. U.S. 447 U.S. 649, 656 (1979). See also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (saying “This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable to a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.”).
As explained in Part I, early constables had powers no greater than those of other individuals, so they needed warrants before engaging in law enforcement activities beyond any citizen’s authority. Like you or I, a constable would be thought outside the bounds of good etiquette (and well outside the law) were he to conduct an unconsented search of another’s person, property or effects, and should — very reasonably — expect to be jailed, physically repulsed, or sued for such conduct.
A private person’s only defense was the absolute correctness of his allegations. A person was liable if, for example, his complaint was too vague as to the address to be searched,[327] he misspelled the name of the accused in his complaint,[328] or he sought the execution of a warrant naming a “John Doe” as a target.[329]
This was the constitutional model secured to America by the Framers. The idea of police having special powers was only a seedling, alien to the scheme of ordered liberty and limited government created by the Constitution. Eventually, police interceded between private individuals and magistrates altogether, and today it is virtually unheard of for a private person to seek a search warrant from a magistrate.
Freedom from search and seizure has been retracting in favor of police ever since the ink was dry on the Bill of Rights. The Framers lived under a common law rule that required warrantless arrests be made only for felonies where no warrant could be immediately obtained.[330] By the early to mid-1800s, the rule had changed to allow warrantless arrests for all felonies regardless of whether a warrant could be obtained.[331] Early American courts also apparently allowed warrantless arrests for misdemeanor breaches of peace committed in the arrestor’s presence. Toward the end of the nineteenth century, most state courts had changed to allow warrantless arrest for all crimes of any kind committed in an officer’s presence, as well as for all felonies committed either within or without an officer’s presence regardless of whether a warrant can be obtained.[332]
By the mid-1900s, arrest had become the almost-exclusive province of paid police, and their power to arrest opened even wider. A trend toward allowing police to arrest without warrant for all crimes committed even outside their presence has recently developed,[333] with little foreseeable court-imposed impediment.[334] Almost every American jurisdiction has legislated for the erosion of common law limitations with regard to domestic violence arrests and arrests for other high profile misdemeanors.[335]
Despite the Fourth Amendment, the Supreme Court has imposed almost no limits on warrantless arrest at all. Only forcibly entering a residence without warrant to arrest someone inside has been found to violate the Fourth Amendment.[336] Outside the home, modern police have been essentially licensed by the Court to arrest almost anyone at any time so long as probable cause exists.[337] The Supreme Court effectively buried the original purpose of warrantless arrest entirely in 1985, declaring that “[r]estraining police action until after probable cause is obtained… might… enable the suspect to flee in the interim.”[338]
Long forgotten is the fact that common law allowance for warrantless arrest was precipitated solely on an emergency rationale and allowed only to protect the public from immediate danger.[339]
The rationale for the felon exception to the warrant requirement in 1791, for example, was that a felony was any crime punishable by death, generally thought to be limited to only a handful of serious crimes.[340] Felons were considered “outlaws at war with society,”[341] and their apprehension without warrant qualified as one of the “exceptions justified by absolute necessity.”[342] By the late twentieth century, however, many crimes the Framers would have considered misdemeanors or no crime at all had been declared felonies and the rationale for immediate community action to apprehend “felons” had changed greatly.[343] The courts, however, have been slow to react to this far-reaching change.[344] In any case, the vast majority of arrests (seventy to eighty percent) are for misdemeanors,[345] which would have been proscribed without warrant under the Framers’ law.
ORIGINALISTS CALL FOR CIVIL DAMAGES
The writings of most modern “originalist” scholars promote civil suits against police departments, instead of exclusion of evidence, as a remedy for police misconduct. Professor Amar, for example, champions a return to civil litigation, but with, somehow, a better return than such actions currently bring.[346] He invents a fantastically implausible cause of action where “government should generally not prevail.”[347] He bases this idea on actual cases from the nineteenth century where people prevailed against constables and sheriffs in relatively routine circumstances, often with heavy damage awards.[348]
These cases actually occurred — but in an age before police took over American law enforcement. Civil damages really were a better remedy when many or most searches were sought — and sometimes conducted — by private persons who stood strictly liable in court if their allegations proved false or their conduct proved overzealous.[349] American law provided recovery for every false arrest. If it was not the constable who executed the warrant, the private person, who lodged the original insufficient complaint, was liable.[350]
Under Founding-era common law, liability for officers was in many respects higher than for private persons. Sheriffs and deputies could be held liable for failing to arrest debtors for collection of debts[351] or to serve other process,[352] for allowing an imprisoned debtor to escape,[353]for failing to keep entrusted goods secure[354] or to deliver goods in custody at a proper time,[355] or for failing to keep faithful accounting and custody of property.[356] Sheriffs were also obligated to return writs within a specific time period, at pain of civil damages.[357] They were liable to debtors whose property was sold at sheriffs sales if proper advertisement procedures were not followed[358] and for negligently allowing other creditors to obtain priority interests on attached property.[359]
Law enforcers were liable for false imprisonment, even where they acted with court permission, if procedures were improper.[360] A deputy was liable for damages to an arrestee whom he arrested outside his jurisdiction.[361] Sheriffs were even liable if their deputies executed civil process in a rude and insolent manner.[362] When executing writs, sheriffs were liable for any unnecessary violence against innocent third persons who obstructed them.[363]
The Founders’ law knew no “good faith” defense for law enforcers. Sheriffs and justices who executed arrests pursuant to invalid warrants were considered trespassers (as were any judges who granted invalid warrants). Any person was justified in resisting, or even battering, such officers.[364] Justices of the peace could be held liable for ordering imprisonment without taking proper steps.[365]
Any party who sued out or issued process did so at his peril and was civilly responsible for unlawful writs (even if the executing officer acted in good faith).[366]
Nor did state authority provide the umbrella of indemnification that now protects public officers. Sheriffs of the nineteenth century often sought protection from liability by obtaining bonds from private sureties.[367] Their bonds were used to satisfy civil judgments against them while in office.[368] If the amount of their bonds was insufficient to satisfy judgments, sheriffs were liable personally.[369] It was not uncommon for a sheriff to find himself in jail as a debtor for failing to satisfy judgments against him.[370] Even punitive damages against officers — long disfavored by modern courts with regard to municipal liability — were deemed proper and normal under the law of the Framers.[371]
Unlike the early constables, uniformed police officers were generally introduced upon the American landscape by their oaths alone and without bonds. Their municipal employers (hence, the taxpayers) were on the hook for their civil liabilities. Although courts tended to treat police identically to bonded officials,[372] their susceptibility to civil redress was much lower. This change in the law of policing had the effect of depriving Americans of remedies for Fourth Amendment (and other) violations.[373] The evil that now pervades criminal justice — swarms of officers unaccountable in court either criminally or civilly — was the very evil that the Founders sought to remedy in the late eighteenth century.[374]
DEVELOPMENT OF IMMUNITIES
But immunities follow duties, and duties placed upon police by lawmakers have exploded since 1791.[375] Immunities grew slowly, beginning with a slight deference to officer conduct so long as there was no bad faith, corruption, malice or “misbehavior,”[376] and ending with broad qualified immunity.[377] When the practice of professional policing arrived from England upon American shores (for the second time, actually, if we consider modern police to be akin to the “standing armies” of the Founders’ generation), cases began to enunciate a general deference to police conduct, permitting that the actions of officers in carrying out their duties “not to be harshly judged.”[378] Appellate courts began to reverse jury verdicts against officers upon new rules of law granting privileges unknown to private individuals.[379]
THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF PROBABLE SUSPICION
Probable cause for the issuance of warrants has also become less strict.[380] The Supreme Court regarded hearsay evidence as insufficient to constitute probable cause for seventeen years in the first half of the twentieth century,[381] but has since given police free reign to construct probable cause in whatever way they deem proper. Instead of probability that a crime has been committed, the courts now require only some possibility, a relaxed standard that “robs [probable cause] of virtually all operative significance.”[382] This watered-down “probable cause” for the issuance of ex parte warrants would have shocked the Founders.[383]
At common law, one could sue and recover damages from a private person who swore out a false or misleading search warrant affidavit.[384] In contrast, few modern officers will ever have to account for lies on warrant applications so long as they couch their “probable cause” in unprovables. “Anonymous citizen informants,”[385] material omissions and misrepresentations,[386] irrelevant or prejudicial information,[387]and even outright falsities are now common fixtures of police-written search warrant applications.[388] For years, Boston police simply made up imaginary informants to justify searches and seizures.[389] Police themselves refer to the phenomenon as “testilying” — an aspect of normal police work regarded as “an open secret” among principle players of the criminal justice systern.[390]
POLICE AND THE “AUTOMOBILE EXCEPTION”
The courts have been particularly unkind to Fourth Amendment protections in the context of motor vehicle travel. Since the 1920s, Fourth Amendment jurisprudence has allowed for a gaping and ever-widening exception to the warrant requirement with regard to the nation’s roadways.[391] Today, police force untold millions of motorists off the roads each year to be searched or scrutinized without judicial warrant of any kind.[392] Any police officer can generally find some pretext to justify a stop of any automobile.[393] In effect, road travel itself is subject to a near total level of police control,[394] a phenomenon that would have confounded the Framers, who treated seizures of wagons, horses and buggies as subject to the same constraints as seizures of other property.[395]
The courts have laid down such a malleable latticework of exceptions in favor of modern police that virtually any cop worth his mettle can adjust his explanations for a search to qualify under one exception or another. When no exception applies, police simply lie about the facts.[396]“Judges regularly choose to accept even blatantly unbelievable police testimony.”[397] The practice on the streets has long been for police to follow their hunches, seek entrance at every door, and then attempt to justify searches after the fact.[398] Justice Robert Jackson observed in 1949 that many unlawful searches of homes and automobiles are never revealed to the courts or the public because the searches turn up nothing.[399]
ONE EXCEPTION: THE EXCLUSIONARY RULE?
Conventional wisdom suggests there is one important exception to the long decline of Fourth Amendment protections: the exclusionary rule. Since 1914, the Supreme Court has required the exclusion of evidence seized in violation of the Fourth Amendment from being used against a defendant in federal court.[400] In 1961, this rule was applied to the states in Mapp v. Ohio.[401] Shortly thereafter, the Supreme Court expanded the exclusionary rule to other protections such as the Fifth and Sixth Amendments in cases such as Miranda v. Arizona.[402]
Textualists and originalists have lobbed a steady stream of vitriol against the exclusionary rule for decades. No enunciation of such a rule, say these critics, can be found in the writings or statements of the Framers.[403] Moreover, say such critics, the rule places a heavy burden on the efficiency of police (but simultaneously, somehow, fails to deter them in any way), and unfairly frees a small but not insignificant percentage of “guilty” offenders.[404] So-called “conservative” legal scholars remember the Warren Court’s imposition of the exclusionary rule upon the states in the 1960s as a bare-knuckled act of judicial activism[405] and argue that the Court “[took] it upon itself, without constitutional authorization, to police the police.”[406]
The Miranda and Mapp decisions provoked an onslaught of hostility by police organizations and their sympathizers that has not subsided decades later. High-ranking authorities (not the least of which were Justices Harlan and White, who dissented in Miranda) wrote that such decisions put society at risk from criminals.[407] The Miranda rule, according to Justice White, would force “those who rely on the public authority for protection” to “engage in violent self-help with guns, knives and the help of their neighbors similarly inclined.”[408] Even more outraged was the chief of police of Garland, Texas, who responded, “We might as well close up shop.”[409]
Yet the dire predictions that followed the Miranda and Mapp decisions were ultimately proved false.[410] Rather than returning to what Justice White decried as “violent self-help” (as the Constitution’s framers truly intended), America continued its slide into increased dependence upon police for the most mundane aspects of law enforcement. If anything, reliance upon police for personal protection has increased since the 1960s.
I propose an altogether different interpretation of Mapp, Miranda, and some of the Warren Court’s other criminal procedure decisions. While I concede that this jurisprudence grossly violated certain constitutional principles (most importantly, principles of federalism), I submit that such rulings were attempts to bring constitutional law into accord with the alien threat posed by modern policing. Professional policing’s arrival upon the American scene required that the Court’s Bill of Rights jurisprudence splinter a dozen ways to accommodate it. Thus, Mapp and Miranda were an application of brakes to a foreign element (modern policing) that is itself without constitutional authorization.
In many ways, the Warren Court was the first U.S. Supreme Court to face criminal procedural questions squarely in light of the advent of professional policing. The Miranda and Mapp decisions, according to noted criminal law expert David Rudovsky, “at least implicitly acknowledged widespread police and prosecutorial abuse,”[411] a phenomenon that would have bedeviled the Framers. Mapp’s holding was brought on more by the need to make the criminal justice system work fairly than by any other consideration.[412] The same realities gave way to the rule of Bivens v. Six Narcotics Agents, in 1971, in which the Court conceded that an agent acting illegally in the name of the government possesses a far greater capacity for harm than any individual trespasser exercising his own authority (as prevailed as the common form of law enforcement in 1791).[413]
Furthermore, the notion that exclusion cannot be justified under an originalist approach is not nearly as well-founded as its harshest critics suggest.[414] Critics of the rule point to the 1914 case of Weeks v. United States[415] as the rule’s debut in Supreme Court jurisprudence.[416] However, the rule actually debuted in dicta in the 1886 case of Boyd v. United States.[417] Even this seemingly late date of the rule’s debut can be attributed to the Court’s lack of criminal appellate jurisdiction until the end of the nineteenth century.[418] The reality is that Boyd, the Court’s first suggestion of the rule, represents, for practical purposes, the very first Fourth Amendment case decided by the Supreme Court. The exclusionary rule thus has a better pedigree than it is credited with.[419]
THE FIFTH AMENDMENT
In a previous article, I described the limitation of common law grand jury powers by Rule 6 of the Federal Rules of Criminal Procedure as an unconstitutional infringement of the Fifth Amendment Grand Jury Clause.[420] The fact that most criminal charges are now initiated not by crime victims but by armed state agents who serve the state’s interests represents a drastic alteration of Founding-era criminal procedure.[421] The suppression of grand jurors’ lawful powers belies the intent of the Constitution that law enforcement officials be subject to stringent oversight by the citizenry through grand juries. Modern policing, in effect, acts as a middleman between the people and the judicial branch of government that was never contemplated by the Framers.
The Fifth Amendment also prohibits the compulsion of self-incriminating testimony.[422] Various competing interpretations ebbed and flowed from this provision until 1966, when the Supreme Court held that police are required to actually tell suspects about the Fifth and Sixth Amendments’ protections before interrogating them.[423] The sheer volume of criticism by police organizations of the Miranda ruling over the next three decades indicates the strong state interest in keeping the Constitution’s protections concealed from the American public.
Modem police interrogation could scarcely have been imagined by the Framers who met in Philadelphia in the late eighteenth century. Police tactics such as falsifying physical evidence, faking identification lineups, administering fake lie detector tests and falsifying laboratory reports to obtain confessions are methods developed by the professionals of the twentieth century.[424] Against such methods a modern suspect stands little chance of keeping his tongue. Like the exclusionary rule and the entrapment defense, the Miranda rule operates as an awkward leveling device between the rights of American citizens and their now-leviathanic government.
In 2000, the Supreme Court upheld (indeed, “constitutionalized”) the Miranda rule in the face of widespread predictions that the police-favoring Rehnquist majority would abandon the rule.[425] The Court delivered an opinion recognizing that “the routine practices of [police] interrogation [is] itself a relatively new development.”[426] The Miranda requirement, according to Justice Rehnquist, was therefore justified as an extension of due process — a far more sustainable course than one extending from the wording of the Fifth and Sixth Amendments.[427]
The Dickerson decision illustrates the increasingly awkward peace between the Bill of Rights and the phenomenon of modern policing. Because the Framers did not contemplate wide-scale execution of government power through paid, full-time agents, modern jurisprudence reconciling the Bill of Rights with today’s police practices seems increasingly farfetched. Justices Scalia and Thomas dissented from the Dickerson majority with well-founded textualist objections, arguing that the majority was writing a “prophylactic, extraconstitutional Constitution” to protect the public from police.[428] Yet in light of the extraconstitutional nature of modern police, the Dickerson majority opinion is no less consistent with the Framers’ constitutional intent.
DUE PROCESS
Due process of law depends upon assurances that a level playing field exists between rival adversaries pitted against each other.[429] The constitutional design pitted a citizen defendant against his citizen accuser before a jury of his (the defendant’s) peers. The state provided only the venue, the process, and assurances that the rule of law would govern the outcome. By comparison, a modern defendant is hardly pitted in a fair fight, facing the vast treasury and human resources of the state. While the criminal justice system of the Founding era was victim-driven, and thus self-limiting, today’s system is fueled by a professional army of police who measure their success in numbers of arrests and convictions.[430]
Police themselves often ignore standard concepts of fairness, official regulations, and statutes in their war on crime.[431] Police agencies have even been known to develop institutional means to circumvent court attempts to equalize the playing field.[432] In the face of unwanted publicity or controversy surrounding police brutality cases, police departments have been known to release arrest records to the media to vilify victims of police misconduct.[433]
The police model of law enforcement tilts the entire system of criminal justice in favor of the state. The police, though supposedly neutral investigators, are in reality an arm of the prosecutor’s office.[434] Where police secure a crime scene for investigation, they in fact secure it for the prosecution alone and deny access to anyone other than the prosecution. A suspect or his defense attorneys often must obtain court permission to view the scene or search for evidence. Only such exculpatory evidence as by accident falls into the hands of the prosecution need be revealed to the suspect or defendant.[435] In cases where police misconduct is an issue, police use their monopoly over the crime scene to prepare the evidence to suit their version of events.[436]
Mapp, Miranda and Dickerson notwithstanding, the tendency of modern courts to work around police practices, rather than nullify or restrain them, poses the very threat to due process of law the Framers saw as most dangerous to liberty. Instead of viewing the system as a true adversarial contest with neutral rules, judges and lawmakers have decided that catching (nonpolice) lawbreakers is more important than maintaining a code of integrity.[437] The “sporting theory of criminal justice,” wrote Justice Warren Burger, “has been experiencing a decline in our jurisprudence.”[438] In its place is a system where the government views the nonpolice lawbreaker as a threat to its authority and places top priority on defeating him in court.[439]
ENTRAPMENT
Abandonment of victim-driven, mostly private prosecution has led to consequences the Framers could never have predicted and would likely never have sanctioned. Even in the most horrific examples of colonial criminal justice (and there were many), defendants were rarely if ever entrapped into criminal activity. The development of modern policing as an omnipotent power of the state, however, has necessitated the simultaneous development of complicated doctrines such as entrapment and “outrageous government conduct” as counterweights.
It was not until the late nineteenth century that any English or American case dealt with entrapment as a true defense to a criminal charge.[440](The case law until then had been virtually devoid of police conduct issues altogether).[441] Beginning in 1880, English case law slowly became involved with phenomena such as state agents inducing suspects to sell without proper certificates,[442] persuading defendants to supply drugs to terminate pregnancy,[443] and enticing people to commit other victimless crimes. Dicta in some English cases expressed outrage that police might someday “be told to commit an offense themselves for the purpose of getting evidence against someone.”[444] Police who commit such offenses, said one English court, “ought also to be convicted and punished, for the order of their superior would afford no defense.”[445]
Entrapment did not arise as a defense in the United States until 1915, when the conduct of government officers for the first time brought the issue before the federal courts. In Woo Wai v. United States, the Ninth Circuit overturned a conviction of a defendant for illegally bringing Chinese persons into the United States upon evidence that government officers had induced the crime.[446] Growth in police numbers and “anti-crime” warfare was so rapid that in 1993, the Wyoming Supreme Court wrote that entrapment had “probably replaced ineffectiveness of defense counsel and challenged conduct of prosecutors as the most prevalent issues in current appeals.”[447]
The growth of the use of entrapment by the state raises troubling questions about the nature and purposes of American government. Rather than “serving and protecting” the public, modern police often serve and protect the interests of the state against the liberties and interests of the people. A significant amount of police brutality, for example, seems aimed at mere philosophical, rather than physical, opposition. Police dominance over the civilian (rather than service to or protection of him) is the “only truly iron and inflexible rule” followed by police officers.[448]Thus, any person who defies police faces virtually certain negative repercussions, whether a ticket, a legal summons, an arrest, or a bullet.[449]One study found nearly half of all illegal force by police occurred in response to mere defiance of an officer rather than a physical threat.[450]
In the political sphere, police serve the interests of those in power against the rights of the public. New York police of the late nineteenth century were found by the New York legislature to have committed “almost every conceivable crime against the elective franchise,” including arresting and brutalizing opposition-party voters, stuffing ballot boxes, and using “oppression, fraud, trickery [and] crime” to ensure the dominant party held the city.[451] In the twentieth century, J. Edgar Hoover’s FBI agents burglarized hundreds of offices of law-abiding, left-wing political parties and organizations, “often with the active cooperation or tacit consent of local police.”[452] The FBI has also spent thousands of man-hours surveiling and investigating writers, playwrights, directors and artists whose political views were deemed a threat to the interests of the ruling political establishment.[453]
Police today are a constant agent on behalf of governmental power. Both in the halls of legislatures and before the courts, police act as lobbyists against individual liberties.[454] Police organizations, funded by monies funneled directly from police wages, lobby incessantly against legislative constraints on police conduct.[455] Police organizations also file amicus curie briefs in virtually every police procedure case that goes before the Supreme Court, often predicting dire consequences if the Court rules against them. In 2000, for example, the police lobby filed amicus briefs in favor of allowing police to stop and frisk persons upon anonymous tips, warning that if the Court ruled against them, “the consequence for law enforcement and the public could be increased assaults and perhaps even murders.”[456]
CONCLUSION
The United States of America was founded without professional police. Its earliest traditions and founding documents evidenced no contemplation that the power of the state would be implemented by omnipresent police forces. On the contrary, America’s constitutional Framers expressed hostility and contempt for the standing armies of the late eighteenth century, which functioned as law enforcement units in American cities. The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Framers. The implications of this altered balance of power are far-reaching, and should invite consideration by judges and legislators who concern themselves with constitutional questions.
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