Sunday, September 11, 2005

John Roberts & the Fourth Amendment: Judicial activism to allow police searches

Would President Bush's nominee for US Supreme Court Chief Justice, John Roberts, defend or detract from the people's right to be free from unreasonable searches and seizures, supposedly guaranteed in the Bill of Rights by the Fourth Amendment? The early tea-leaf reading doesn't look good.

Professor Thomas Clancy offers up this analysis of the eight search and seizure cases decided by Roberts during his brief tenure on the D.C. Circuit Court of Appeals. He upheld the government's search or seizure every time. Most famously, Roberts upheld the arrest, handcuffing and booking into jail of a 12-year old girl by the Washington D.C. transit police for the heinous crime of
eating a single french fry on the train platform (basing his decision, incidentally, on the Texas case, Atwater v. City of Lago Vista).

With the caveat that examining just eight cases hardly addresses the full range of Fourth Amendment issues Roberts might face on the court, Clancy offers the following general observations: "Roberts does not have a high standard for finding probable cause. Nor does his view of articulable suspicion ... appear to be particularly demanding." That's not very encouraging.

Clancy thinks many judges and academicians would find Roberts' probable cause standard "set too low," but he thinks Roberts' position is more or less "in tune with the current Supreme Court analysis." I don't feel too reassured, though, since the Fourth Amendment has been more or less gutted in recent years by a Supreme Court anxious to clear the way for nearly unlimited police searches.

Perhaps most distressing, Roberts seems prepared to engage in judicial activism to maximally allow police latitude to search. "Judge Roberts demonstrated a willingness to depart from the lower court's reasoning in [two cases] to uphold the search," Clancy wrote. "Many courts would not engage in such analysis, finding instead that the claim is unpreserved." In other words, Roberts imposed his own judgment over that of the trial judge, even though the prosecution never made the arguments on which he based his decision.

Indeed, Roberts appears to feel unbound by the judgments of those beneath him in the system, but is willing to impose his own views, at least if they support more searching. In
United States v. Holmes, Clancy says Roberts substituted his own judgement for the objective belief of the peace officer at the scene in order to justify a search -- the officer found a drug scale during a "Terry frisk," which is supposed to be a non-invasive search to check for weapons.

Even though the officer in Holmes believed the square object was a scale, not a weapon, Roberts ruled it "could have been another type of weapon, a box cutter, for example," so a full-blown search was justified. Writes Clancy, "Such speculative reasoning is inconsistent with the proper scope of a frisk; to hold otherwise permits general exploratory searches, effectively obliterating the distinction between the limited intrusion authorized by a
Terry frisk and a search." That's pretty disturbing -- the line was already awfully blurry.

The notorious french fry case, says Clancy, raises questions of how Roberts might interpret the Fourth Amendment's reasonableness requirement. One could view Roberts decision as indicative that he "would join Justices Scalia and Thomas" in viewing the definition of reasonableness as hinging on the state of US common law in 1791, a fairly regressive standard that Clancy says "is, in my view, incorrect and unworkable." The tea leaves aren't clear, though, and Clancy also thinks Roberts might look to the "essential purpose" of the Fourth Amendment, eschewing the current competing standards.

That's an optimistic view. Given Roberts' pro-search positions in every case that came before him, it seems unlikely that he'd throw his weight on the court behind new restrictions on searches. Janice Rogers Brown, he ain't.

Via CrimProf blog UPDATE: Commenters at Reason Hit and Run and Last Night in Little Rock at Talk Left had additional comments.


Anonymous said...

Sadly, Roberts will fit right in on the Court, and doubtlessly will face little scrutiny regarding his views on search and seizure.

Also sad is that O'Connor dissented in Atwater.

123txpublicdefender123 said...

Unfortunately, I fear that the protections of the 4th Amendment will soon be whittled down to almost nothing. Atwater was the sign of the apocalypse, and with Bush appointing the next two justices, it will only get worse.

Tom McKenna said...

Nice try, but the activism label doesn't fit. You surely realize that the proper analysis is not what the reasons the officer subjectively gave to justify the seizure, but what grounds in fact objectively existed. If Roberts saw an objective justification that the officer did not, it would have been activism NOT to uphold the search.

Gritsforbreakfast said...

@ McKenna: Judges who place their own judgments above those of the fact finders more or less define judicial activism, unless I'm missing something. If he'd also brought up unpreserved claims to disallow searches, for example, I might view your position as relevant, but his rulings just go one way. I think the limited evidence supports the thesis that Roberts goes out of his way to seek justifications for maximum searching, though I'll grant 8 cases isn't much to go on. He hardly seems an icon, though, of judicial restraint.

Anonymous said...

An officer's subjective motivations in retrieving an object are irrelevant. See Whren, 517 US 806, 813 ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.")

Irrelevant facts have no legal significance. An appellate court (and in this case, the trial court as well) could happily ignore that part of the officer's testimony.

There's nothing odd about this opinion.

Anonymous said...

Sure, but Whren's assumption that the officer's motive was irrelevant sent us hurtling down a slippery slope to the point where nearly all searches are justified under some cockamamy pretext or another. Your citing it, while perhaps justifying an appellate judge's ruling, shouldn't make one feel any better about the degradation of Fourth Amendment over the last 3-4 decades. The most optimistic thing you can say is Roberts appears no worse than the Rehnquist court, but he appears to be no improvement, either.

Anonymous said...

Well, it makes Prof Clancy's analysis pretty suspect. He presents the decision in Holmes as if it's something, at best, out of the ordinary, and at worst, a massive degradation of the Fourth amendment. Before Whren, I think only the first and ninth circuits had a rule requiring that an officer have a supportable subjective fear that the suspect had a weapon (in other words, they didn't apply a "reasonable officer" standard). If presented with that same question today, I don't think that rule would survive.

In any event, application of the reasonable officer standard is completely unremarkable, save for the fact that the author of the opinion happens to be a court nominee that people (including law professors) want to designate the next "bad guy".

I would rather have somebody who would apply actual precedent than some guy who came up with result-oriented opinions just 'cause he thought Whren (or whatever) was wrongly decided.

Gritsforbreakfast said...

Jimbeaux, I think you're right that the existence of Whren and other bad precedent makes that case inconclusive. Perhaps more disturbing to me, I find essentially accurate Prof. Clancy's assessment that Roberts' probable cause and reasonable suspicion standards fall on the low end of the threshold, and those are much more in the domain of the individual jurist's judgment.

Really good discussion here!