Rights v. Utility And The Fourth Amendment

Connecticut public defender and blogger Gideon and I had a spirited exchange the other week about the Connecticut Supreme Court’s recent decision in State v. Kelly, which concerned the legality of a warrantless Terry stop (and resultant arrest) of a person whom the police had no reason to suspect of having done anything wrong, must less anything criminal.  So why did the Court hold that the detention and subsequent arrest of this person was constitutional?  Because he happened to be walking down the street with someone the police reasonably suspected of a crime.  A clearer case of “guilt by association” would be hard to find.

Gideon really hates State v. Kelly. I don’t much care for it either. In this post I set forth some further thoughts on why I find the decision troubling.  As I explain, the decision exemplifies a disturbing (at least to me) trend–dating back to 1968 and the U.S. Supreme Court’s decision in Terry v. Ohio–in which the search and seizure provisions of the federal and Connecticut constitutions have been transformed from: 1) rights-oriented provisions intended to protect personal privacy against police intrusions, into 2) utilitarian provisions that justify intrusions upon personal privacy as “reasonable” in light of the benefits to law enforcement and, presumably, society at large.

Let me begin with a hypothetical from a textbook I use in my course on privacy law at UCONN Law School. Imagine a man wearing a mask robs a bank.  A teller sounds the alarm while the robbery is in progress and the police respond quickly, arriving at the bank as the thief is seen running into an adjacent neighborhood. The police quickly cordon off the streets on all sides of the neighborhood. There are twenty houses in the neighborhood. Assume, for the sake of this hypothetical, that the police are 100% certain that the thief is still in the neighborhood and is in one of the houses.  They just don’t know which one.

Now, if the goal is to maximize the likelihood of catching the thief–clearly a societal benefit–what should the police do?  They should search every house.  Can they?  No.  Why not?  Because of the Fourth Amendment. The Fourth Amendment requires the police to obtain a warrant before conducting a search of a house.  Can’t they get a warrant to search each house?  No.  Why not?  Because the Fourth Amendment requires the police to convince a neutral magistrate, usually a judge, that there is probable cause to believe that the thief is in the particular house the police want to search. Indeed, the Fourth Amendment was included in the Bill of Rights largely in response to Great Britain’s use of general warrants, which allowed the Kings’ men to search homes and businesses at random, without any suspicion.  To say that the colonists hated general warrants would be a gross understatement.

Clearly, under circumstances like the one I described above, the Fourth Amendment operates as an impediment–as an obstacle–to maximally effective law enforcement. That makes some people angry.  It shouldn’t. That is the point of the amendment.

Assume for the moment that the neighborhood described above exists in a world without the Fourth Amendment. In the interest of catching the thief, the police search every house in the neighborhood. That means every person living in the neighborhood experiences a “cost”–an invasion of their privacy–for the societal “benefit” of catching and punishing a thief.

Now assume the neighborhood exists in a world with a Fourth Amendment. In order to get a warrant to search a particular home, the police must have probable cause to believe that the thief is in that specific home. Let’s assume some folks walking along the sidewalk in the neighborhood saw someone with a mask over his face and a stuffed backpack run into a particular house at the time of the robbery. The people share that information with the police, who get a warrant to search the particular house. With a little luck, they catch the bad guy. In this situation, only the privacy of the particular homeowner is invaded.

Now to my point: The warrant, probable cause and neutral magistrate requirements of the Fourth Amendment collectively operate to shift the risk of loss of privacy (from a search) away from the law-abiding public in general and towards specific individuals who the police (and a judge) have probable cause to believe either committed a crime or who have ievidence of a crime (which a search would reveal). Instead of everyone being at risk of the police invading their privacy, only a subgroup of people who meet certain criteria are at risk.

I’d like to take credit for this risk shifting analysis, but I can’t.  Justice Harlan described the Fourth Amendment this very way in his dissent in U.S. v. White (1971), a case about whether about the police needed a warrant before an undercover officer or informant could wear a hidden wire and secretly record his own face-to-face conversations with the defendant.  (A divided Court held that a warrant was not required because the defendant did not have a reasonable expectation of privacy in his conversation with the informant.)  Harlan wrote that “[t]he very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society” in the manner described above.  (In the context of the case before him, Harlan and his fellow dissenting justices were deeply concerned about the negative effect of exposing law-abiding members of society to secret, warrantless, electronic monitoring of their conversations.  Oh, how prescient they were.)

As Justice Harlan interprets it, the Fourth Amendment is rights-oriented and anti-utilitarian.  A personal right, such as a right to privacy in one’s home or person, cannot be invaded simply because the “benefit” to society of the invasion may outweigh the “cost” to the individual. The late, great legal philosopher Ronald Dworkin used the metaphor of rights as “trumps.”  In his 1978 book, “Taking Rights Seriously,” he explained: “Individual  rights  are  political  trumps held  by  individuals.  Individuals  have  rights when,  for some  reason,  a collective  goal  is not  a sufficient  justification  for  denying them what  they wish,  as  individuals  to  have  or  to  do,  or  not  a  sufficient  justification  for  imposing  some  loss  or  injury  upon  them.”

What does any of this have to do with State v. Kelly?  Let me back up a minute.  For most of the history of the Fourth Amendment, the requirement that police obtain a warrant from a judge based on probable cause was inextricably tied to the amendment’s prohibition against unreasonable searches and seizures.  Without a warrant, searches were generally deemed unreasonable per se. Then along comes Terry v. Ohio in 1968. The Supreme Court held in Terry that a police officer could conduct a limited “stop” of a person without a warrant if the officer had a reasonable suspicion, based on specific, articulable facts (i.e., more than a hunch) that criminal activity was afoot. The officer could also conduct a limited pat down or “frisk” of the person if he had a reasonable, fact-based suspicion that the person was armed. Such “stop and frisks” are still “searches” within the meaning of the Fourth Amendment. But when based on a  reasonable, articulable suspicion, they are “reasonable” and thus pass muster under the Fourth Amendment. In short, Terry v. Ohio was the first case in the law enforcement context in which the Supreme Court held that a search could be reasonable under the Fourth Amendment without probable cause and without a warrant.

Terry v. Ohio seems like a pragmatic decision. Surely a police officer with reasonable grounds to believe a person may be engaging in criminal activity should be allowed to briefly detain the person, ask a few questions and make sure the person does not have a weapon that could be used to harm the officer, right? What Terry really represents, however, is a fundamental shift in the Supreme Court’s attitude and approach toward the Fourth Amendment. Terry marks the beginning of the shift towards a new Fourth Amendment paradigm in which courts weigh the benefits of a search against its costs to determine whether it is “reasonable.” In the new paradigm, utilitarianism, not individual rights, reigns supreme.

Lest you doubt my point, just look at the long line of post-Terry Fourth Amendment cases involving searches of students in schools and drug testing of student athletes and government employees. (Check out New Jersey v. TLO (1985); Nat’l Treasury Employees Union v. Von Raab (1989); Bd. of Educ. v. Earls (2002)). In these and other so-called “special needs” cases, the Supreme Court has held that no warrant or probable cause is required. Indeed, in many cases no individualized suspicion is even required.  School systems and government employers can conduct random, suspicionless searches, which are deemed “reasonable” because the Supreme Court says the benefits to society are great while the intrusion upon personal privacy is minimal.

State v. Kelly fits squarely within the utilitarian paradigm that has governed Fourth Amendment analysis since 1968 and has increasingly governed state constitutional analysis as well. The case is all about the reasonableness of searching a person who was suspected of nothing, where reasonableness is determined by weighing the benefits of the stop and frisk against the costs.  It is a utilitarian decision through and through. That’s why State v. Kelly troubles me.  Rights should trump utility, not the other way around.