Fourth Amendment: Search and Seizure Scorecards on Supreme Court Justices Using 26 Cases


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With the 2016 presidential race in its homestretch and a vacancy on the Supreme Court, now is the time to take a look at the Fourth Amendment right to be secure from unreasonable searches and seizures and see how the appointees by Democrats and Republicans stack up. The Fourth Amendment to the United States Constitution states:

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.

FOURTH AMENDMENT CASES GENERALLY

On average, Fourth Amendment cases involving searches and seizures reach the Supreme Court more than once per year. This research looks at each Fourth Amendment case, reports how each Justice voted, then tallies the numbers for each Justice and graphs the results. The first graph covers seven cases that went to the current or most recent Court. The second graph looks at 26 cases since 1995.

In typical Fourth Amendment cases reaching the Supreme Court, criminal defendants are caught doing something bad. They tend to be drug users or dealers and guilty as sin. These people do not receive much sympathy and they often get what they deserve.

However, rules from these cases are then applied across the board to suspicious or even innocent citizens. For example, police stop a person and run an arrest warrant check without any legal authority to do so — with no “reasonable suspicion.” There is a warrant out, so police arrest the person and find drugs. If the search of this guilty person is legal, then a police officer may stop any innocent person at any time to run a warrant check — just because he feels like it.

PROTECTIVENESS OF CITIZENS

“Protectiveness” applies where the Court or a Justice protects citizens from searches and seizures by applying the Fourth Amendment right to the case. Since the Fourth Amendment permits police searches and seizures in cases that are “reasonable,” there is quite a bit of interpretive wiggle room.

Every Fourth Amendment Supreme Court divided decision has two basic sides. In a divided case, some Justices come out for more protectiveness of people. The others come out for more deference to police authority. This always happens and the lines are easy to draw. Over time, overall scores of Justices reveal their general views. We can calculate a percentage and draw a graph.

LATEST SUPREME COURT CONFIGURATION

Since the beginning of the current configuration of the Supreme Court in 2009, there have been seven major Fourth Amendment cases with split decisions. One came in 2016 after the loss of Antonin Scalia. Four cases were decided by a single vote. Only two cases or 29 percent came out more protective of citizens. The Supreme Court has not been kind to the Fourth Amendment lately.

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Ties in the current period are broken by looking at longer-term records (below). For example, Ruth Bader Ginsburg has a lower overall percentage of protectiveness than Elena Kagan.

Recent Democratic appointee Sonia Sotomayor voted for protection in all seven cases while recent Republican appointees Samuel Alito and John Roberts voted for police power in every case since 2009. Republican appointee Antonin Scalia was the Fourth Amendment swing voter, while Democratic appointee Stephen Breyer voted with police as often as Republican appointees Anthony Kennedy and Clarence Thomas.

Cases are highly factual, but here are some highlights from these seven cases. Read full cases for finer points.

  • Clarence Thomas penned a 5-3 decision allowing a drug charge from a search after a warrant check run during an illegal police stop. Sonia Sotomayor disagreed — she warned of a “carceral state.” (Utah v. Strieff, 2016)
  • John Roberts and most of the court allowed a drug charge from a search following a police stop based upon the officer’s misunderstanding of traffic law. A police officer may stop people who are not breaking the law if the officer “reasonably” misunderstands the law. Only Sonia Sotomayor disagreed. (Heien v. North Carolina, 2014)
  • John Roberts wrote a 5-4 decision allowing states to “routinely” collect DNA databases of those arrested. Antonin Scalia disagreed. He said that DNA should not normally be collected unless it was related to the crime. (Maryland v. King, 2013)

THE LONGER PERIOD, 1995 to 2016

Fourth Amendment cases were not always so partisan as they are today. Expanding the period back to 1995 and adding four prior Justices, we see that the latest four appointments are near the edges. Ten of 26 cases were decided by a single vote. Only 32 percent of cases came out more protective of citizens, a bit higher than the above seven cases.

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Samuel Alito and William Rehnquist were exactly tied (8.3%). John Roberts was slightly lower (7.7%).

Two Republican appointees, David Souter and John Paul Stevens, were very protective of citizens. If these two did not vote with the Democratic appointees, the overall protectiveness of the Court would have been much lower. Democratic appointee Stephen Breyer shifted toward police in the latest period, but he used to be more in the middle.

Here are some basic highlights from more interesting cases.

  • Eight Justices found that a strip search of an eighth grade girl for suspicion of ibuprofen possession was unreasonable. Clarence Thomas disagreed. This was the only case ever of 13 and 12 respectively where John Roberts and Samuel Alito voted against the police. (Safford Unified School District v. Redding, 2009)
  • In the typical 5-4 split of the period, John Roberts permitted a search based on an old expired arrest warrant to stand, joined by Scalia, Kennedy, Thomas, and Alito. (Herring v. United States, 2009)
  • Antonin Scalia penned a decision with the same 5-4 split as above. This case involved an unconstitutional violation of the knock-and-announce rule. “Happily,” Antonin Scalia refused to do anything about it. He simply would not enforce the Constitution. (Hudson v. Michigan, 2006)
  • Anthony Kennedy wrote another 5-4 decision upholding a “stop and identify” statute with the typical 5-4 split of this earlier period, O’Connor, Scalia, Thomas and Rehnquist. Papers please. (Hiibel v. Sixth Judicial District Court of Nevada, 2004)
  • Clarence Thomas permitted officials to require urine tests of all middle school and high school students as a condition to participate in extracurricular activities. Clarence Thomas was joined by Rehnquist, Scalia and Kennedy as usual. The fifth vote to win the 5-4 decision came from Breyer because O’Connor disagreed. (Pottawatomie v. Earls, 2002)

CHART OF DATA DETAILS AND CALCULATIONS

Here is the chart of details for all 26 cases. The chart includes the year of the case, a party to the case, the overall vote, and the vote of each Justice.

  • The chart is broken into three periods with totals at the bottom.
  • Justice names are colored blue for Democratic appointments, red for Republican appointments.
  • More protective votes are marked with blue 1’s.
  • Less protective votes are red. Letter Y means the case came out less protective, letter N means the case came out more protective.

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Editor’s note: a minor correction of an input error was made. Corrected totals moved Stevens ahead of Kagan in protectiveness. All others remain in the same order.