The Warrant Requirement

by Sherry F. Colb

In my Verdict column for this week, I discussed Collins v. Virginia, a case presenting the question whether the automobile exception to the warrant requirement applies to searches of vehicles parked in a suspect's driveway. In the column, I examine the question about the Fourth Amendment and the driveway (doctrinally designated as the "curtilage") and consider as well whether the Court ought to get rid of the automobile exception to the warrant requirement altogether. In this post, I will take up the broader issue of why we have a Fourth Amendment warrant requirement and what this requirement can and cannot do to protect privacy.

The Fourth Amendment discusses warrants explicitly. It states that "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." Notice, however, what the text does and does not do. It does provide a list of requirements for the issuance of a warrant (including probable cause). If police lack probable cause, then they cannot get a warrant. The text notably does not, however, say when--if ever--police are required to obtain a warrant.

Reading the text literally, then, it appears that if police want to have a warrant for some reason, they must satisfy various requirements to get it, but searches and seizures do not necessarily require a warrant. In the words of the Fourth 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...." Searches and seizures must therefore be "reasonable," and the role of the warrant requirement, if there is one, must be inferred from the potentially capacious reasonableness requirement.

Notwithstanding the absence of an explicit warrant requirement, the Supreme Court has identified warrants as the default Fourth Amendment obligation for police performing a search or seizure. Warrants are, as a rule, how police conform to the reasonableness requirement for searches and seizures. But the Court has also recognized exceptions to the warrant requirement in various circumstances, situations in which police need only have probable cause to perform a lawful search. Automobile searches represent one such exception. The Collins case asks whether this exception applies beyond public streets to the curtilage and perhaps beyond.

Behind these doctrinal questions lies an assumption. The assumption is that a warrant requirement is generally helpful to the individual seeking to protect her privacy from unreasonable searches. I say searches rather than searches and seizures because the Court has generally allowed seizures based on probable cause alone. Public arrests, for example, require no warrant, and the seizure of incriminating evidence in plain view during an otherwise lawful search also requires no special warrant.

How is a warrant requirement helpful to privacy? The answer is that when police must seek a warrant, the basis for police suspicion comes before a pair of eyes that are not, in the Court's words, engaged in the "often competitive enterprise of ferreting out crime." A police officer tends to interpret what she sees with crime-tinted glasses. She might believe that she has probable cause on the basis of observations that a neutral person who sees things with greater objectivity would regard as innocent or inconclusive. The magistrate who reviews the warrant application is that neutral person who corrects for the zealous vision of the police officer.

The warrant requirement may therefore be helpful in a few ways. First, if an officer is overly eager in construing the evidence as supportive of a search, the need to get a warrant allows a neutral magistrate to intervene in the process. Without the magistrate's veto power, the officer could search whenever he believed he had probable cause, even when that belief reflected zeal rather than the odds of finding incriminating evidence.

Second, the officer's need to articulate for a magistrate the basis for probable cause may expose to that officer (as well as to the magistrate, of course) the weakness of the warrant application. Having to present the case for a search to a magistrate may thus discipline the officer's own thought process in ways that could help avoid an unreasonable search.

And third, the magistrate's neutral and objective approach may ultimately filter down to the police so that they too begin to assess the basis for a search more critically than they would have done without the magistrate's guidance. This last way in which magistrates help represents a kind of role modeling or mentoring, through which the police learn to think more like a neutral judge.

All of these contributions of the warrant requirement are valuable and make a strong policy case for having a warrant requirement. For those of us who reject the notion that strict adherence to the text ought to be dispositive on the meaning of a provision, the fact that a warrant requirement helps to ensure that searches will be reasonable is a strong argument for construing the text's reasonableness requirement as including a warrant requirement. There are, however, ways in which police misbehavior does not lend itself to correction through the warrant requirement. Consider "Testilying."

"Testilying" is a portmanteau that critics of the police have used to refer to when police officers commit perjury to support their doing whatever they believe ought to be done. Police might testilie if they strongly suspect that John Doe committed a murder but lack the sort of evidence that they think would sway a jury beyond a reasonable doubt. In such a situation, police may testify that they found the victim's blood in Doe's house when they in fact planted the blood there. Relatedly, an officer might provide an affidavit to a magistrate saying falsely that a confidential informant who has provided reliable tips on many occasions told her that a large quantity of heroin is sitting in glassine bags in Jane Smith's living room. If the officer is confident that she will find incriminating evidence in the house, then she may feel justified in inventing facts that let her in the door.

If the problem is testilying, the warrant requirement will do little to solve it. First, the magistrate cannot intervene between an officer's inadequate basis for suspicion and a search if the officer supplements the inadequate foundation with fictional assertions that would impress anyone (including a neutral magistrate) as sufficient to justify issuance of a warrant. Second, the process of having to articulate the basis for probable cause will not discipline the lying officer into deciding not to bother trying to get a warrant when probable cause is plainly absent. The officer can easily articulate facts that amount to probable cause (even when the actual known facts plainly do not) if she is not limited to the truth.

And finally, the officer who lies will not come to learn the meaning of neutrally-determined probable cause by having to present facts to a magistrate repeatedly and see when a warrant does or does not issue. Once he is lying to get a warrant, he will likely invent lies that comfortably exceed what is strictly needed for a warrant.

The one way in which the warrant requirement may address testilying is that officers who tell the truth and really have probable cause will probably find evidence during the searches that follow more often than will lying officers who lack actual probable cause. If an officer continually asks for warrants and then finds nothing, that may signal to a magistrate who checks the inventory after each search that the officer is being dishonest. Such comparative outcomes, however, are hardly an exact science, and lying officers may therefore be able to operate beneath the radar.

What does this all mean? It means that the warrant requirement assumes two things about police: 1) they generally tell the truth in their sworn affidavits about how much information they actually have; and 2) they are inclined to see crime everywhere, even when a person with a neutral perspective on the facts would not reach the conclusions that they reach about what is going on. The difference between the two flaws--dishonesty and bias--is crucial, because warrants help to address the second while doing little to address the first.

In Evidence class, we talk about insincerity and bias as two distinct bases for impeaching a witness's credibility. Insincerity is an inclination to lie, and if a witness is telling a plausible story that is consistent with the other evidence, then it may be necessary to attack the witness's character for truthfulness. Bias is a tendency to interpret what you see in the world in a manner that is shaped by prior prejudices and understandings. If you expect someone to be rude to you, then you may interpret his walking by you without saying hello as a deliberate snub rather than as a product of his not seeing you. Students sometimes think at first that when we accuse a witness of bias such as a favorable inclination toward the prosecution, we are accusing the witness of lying about things to help the prosecution. But a biased witness could be telling the whole truth as he understands it; it is just that his understanding is clouded.

The Fourth Amendment warrant requirement assumes that police officers will tell the truth about what they know but it assumes as well that their vision is often clouded so that they interpret facts as suspicious that are not fairly regarded as suspicious. If these assumptions are warranted, then we do not need to worry that much about the searches that police perform. The warrant requirement will effectively protect privacy where it applies.

Unfortunately, however, there are instances--particularly in the seizure context--in which we cannot demand that police get a warrant. I have in mind emergency cases that involve police use of deadly force, a Fourth Amendment seizure. We can sometimes see in such cases how truly biased the police may be toward perceiving criminality. There now exist videos of police using deadly force, and in at least some of those cases, no reasonable, neutral person could have thought that the shooting was appropriate. After the fact, though, juries might be reluctant to judge a police officer who found himself in a high-stress, complex situation. This is my most charitable interpretation of the alarming frequency of acquittals in these cases.

We are accordingly left with two problems that warrants cannot really solve:  police officers who lie and police officers who believe themselves to be in an emergency situation. For those, we must search for other solutions, solutions that will preserve privacy from invasion by liars and that will save the lives of vulnerable and frequently minority individuals doing nothing wrong and simply craving safety from a terrifying figure in blue. And for warrant-responsive problems, we can hope that the Supreme Court does not needlessly narrow the scope of the warrant requirement in cases like Collins.