The Missing Piece in the 2002-03 Supreme Court Term:
The Forgotten Fourth Amendment, and Why It Will Matter Greatly in the War on Terror

By VIKRAM DAVID AMAR

Friday, May. 30, 2003

We're in the backstretch now. Over the next month or so, the remaining decisions of this year's blockbuster Supreme Court Term will be handed down.

As many commentators have noted, this Term is truly remarkable in the breadth and importance of the issues the Court is taking up. Finally, at long last, we should get some guidance on the role, if any, that race may play in university admissions policies. Soon, we should find out if consensual homosexual conduct is constitutionally protected as against laws that target same-sex activity.

Meanwhile, we have already learned in one of this year's decisions that some cross burning may be banned without violating the First Amendment. From equal protection to due process to free speech to federal habeas review and beyond, this Term probably has more significant cases than any in the last decade.

For those who like surprises, this Term also has much to offer. The unlikely May 27 ruling upholding Congress' power to enact the Family Medical Leave Act (FMLA), and to subject states that violate it to monetary liability, is just one example.

While, to my mind, the FMLA ruling is correct, it was also quite unexpected, and somewhat inconsistent with a number of federalism cases the Court had decided over the past six years. I am sure that, in the next few weeks, there will be other major upsets to confound those of us who try to handicap high Court contests. Unpredictability is, I suppose, part of what makes Court watching so addictive.

But even as we wallow in the embarrassment of riches the Court is offering this Term, we should pause to note what the Supreme Court has not been providing. For me, the most glaring hole in this year's Supreme Court Term is the space where the Fourth Amendment should be. This hole is especially troubling for, as the war on terror continues, the importance of how the Amendment is interpreted will only increase.

The Court Typically Takes Several Fourth Amendment Cases, But Not This Term

The Fourth Amendment states that "[t]he 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."

Over the past dozen years or so, Fourth Amendment search and seizure cases have been a mainstay of the Court's docket. In each of the past several years, the Court has decided between four and eight significant Fourth Amendment cases.

Two terms ago, the Court decided (by my count) at least six major search and seizure disputes. Last year, the number was down, but there were still five or so. This current year there are none at all: By my review, not a single one of the fully briefed and argued cases this Term focused on a Fourth Amendment question.

Indeed, the most guidance we have received from the Court in the search and seizure area came in a case, Kaupp v. Texas, where the Court summarily reversed the Texas state courts. That is, it reversed the lower court's decision without benefit of full briefing or argument.

The Court's Single Fourth Amendment Decision This Term Sheds Little Light

In Kaupp, police had suspected Robert Kaupp, a 17-year old man, of being involved in the murder of a 14-year old girl. Six police officers - three of whom were dressed in full uniforms - went to Kaupp's home, without any probable cause or a warrant, at 3:00 AM. There, they were allowed into the house by Kaupp's father.

Three of the officers proceeded into Kaupp's bedroom, awakened him with a flashlight and informed him that "we need to go and talk." After Kaupp said "Okay," the police handcuffed him and led him - shoeless and dressed only in his underwear, though it was January - out of the house and into the back seat of the patrol car.

They then took him on a drive past the place where the body of the victim was found. From there, they proceeded on to the Sheriff's headquarters, where they put Kaupp in an interview room and read him his Miranda warnings. According to the record, at no time did police ever tell him he was free to leave. After some interrogation, Kaupp acknowledged some involvement in the victim's death.

Kaupp subsequently filed a motion in court to suppress any of the statements he made at the Sheriff's headquarters, on the ground that his arrest had violated the Fourth Amendment. However, the Texas courts ruled that he had not been arrested (that, "seized" within the meaning of the Fourth Amendment) until after he had confessed some involvement in the crime at headquarters. They also held that Kaupp should have reasonably known that he was free to decline to accompany and talk to the officers.

Moreover, they held that when he said "Okay" in response to the statement "We need to go and talk," he was volunteering to be with the police. Because of this consent, the Texas courts said, there was no "seizure" that could implicate the Fourth Amendment's ban on "unreasonable searches and seizures."

Quite understandably, the Supreme Court summarily reversed the conviction. It held that a reasonable person, under those circumstances, would not have known he "was at liberty to ignore the police presence and go about his business" - the standard for determining when there is a seizure under the Fourth Amendment.

I, for one, am glad that the Court held Mr. Kaupp's arrest to be an unreasonable seizure. But because the decision of the Texas courts was so obviously wrong, the Supreme Court's reversal doesn't tell us very much.

There is an old adage that hard cases make bad law. Perhaps. But easy cases make very little law. And, with all due respect to the Texas courts, Mr. Kaupp's arrest presented an easy case.

Why the Supreme Court's Ignoring the Fourth Amendment Is A Serious Mistake

The Kaupp case aside, there has been no Fourth Amendment fare on this year's Supreme Court plate. That is a shame, because I believe the Fourth Amendment is likely to be the most active and important constitutional provision as the United States' war on terror heats up.

Congress, and especially the Bush Administration, have adopted a number of measures over the last few years, to enhance security, that potentially implicate Fourth Amendment concerns. While they may also raise questions under other Constitutional provisions, none is more centrally implicated than the Fourth Amendment. Indeed, most of the new policies that the war on terror has brought about constitute "searches" and/or "seizures" in the ordinary sense of those words.

One example of such a measure is the expanded set of FBI surveillance guidelines my brother, Akhil Reed Amar, and I described in an earlier column. Other examples are so-called "predictive surveillance" techniques like the "Total Information Awareness" program, which was discussed by Anita Ramassastry in one of her past columns. New policies permitting the federal government to eavesdrop on attorney-client conversations also raise complicated fourth amendment questions.

For a variety of reasons Akhil and I detailed in our earlier piece, the Supreme Court has been reluctant to call a search a search, and to label a seizure a seizure. And even when it rightly labels the facts, it often fails to analyze carefully whether the Fourth Amendment has been violated.

Sometimes, the Court has reflexively asked whether there has been probable cause and/or a warrant. But neither is required, strictly speaking, by the text of the Amendment - as the above-quoted language of the Amendment indicates.

Increasingly, the Court has asked the question the text of Amendment does suggest - whether the search or seizure is "reasonable." But the result has usually been rubber-stamp the government action. The "general reasonableness approach" has often been synonymous with a government victory.

Last year's case involving drug testing of high school students who wanted to participate in any extracurricular activities is a good example. The Court acknowledged that making a student urinate into a cup within earshot of a teacher constituted a search or seizure. But it then the went on, without much real explanation, to hold that such an imposition was "reasonable." Why? Primarily because teenage drug use is a bad thing.

Fourth Amendment caselaw, including and perhaps especially the generalized "reasonableness approach," needs a lot more structure and clarification than the Supreme Court has yet offered. And that is only going to become more true as the war on terror moves towards its indefinite finish line.

For those of us who are Court spectators, there was not much action this year. But, as they say in all sports, there is always next year. I am heartened to see that of the 25 or so cases already set for next year's Term, five focus on the Fourth Amendment -- the very Amendment that was apparently scratched from this year's contests.


Akhil Reed Amar is on vacation this week.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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