The Supreme Court recently heard oral argument in Lange v. California. The case asks whether a police officer violated the Fourth Amendment when he entered the garage of a person suspected of a misdemeanor crime without a warrant while in “hot pursuit” of him. Professor Jeffrey Fisher of Stanford University, who argued the case on behalf of Arthur Lange, and professor Donald Dripps of the University of San Diego Law School, a Fourth Amendment and criminal procedure expert, join host Jeffrey Rosen to discuss the case and its potential implications for policing, privacy, the Fourth Amendment, and more.
Some terms that will be helpful to know for this week (definitions adapted from Legal Information Institute):
- Warrantless entry: when a police officer enters a private residence without a warrant issued by a judge or magistrate that would allow the police officer to search a specified place for evidence even without the occupant’s consent.
- Hot pursuit: exception to the general rule that police officers need a warrant before they can enter a home to make an arrest. Current case law states that if a felony has just occurred and an officer has chased a suspect to a private house, the officer can forcefully enter the house in order to prevent the suspect from escaping or hiding or destroying evidence.
- Exigent circumstances: exceptions to the general requirement of a warrant under the Fourth Amendment searches and seizures.
FULL PODCAST
PARTICIPANTS
Jeffrey L. Fisher is Professor of Law and Co-Director of the Supreme Court Litigation Clinic at Stanford University. He has argued over 40 cases in the Supreme Court, and also serves as special counsel to the Supreme Court and Appellate Practice group of O’Melveny & Myers. He argued in Lange v. California on behalf of Arthur Lange.
Donald Dripps is Warren Distinguished Professor of Law at University of San Diego Law School. His expertise is in Constitutional Law, Criminal Law and Criminal Procedure, and he has written widely about the Fourth Amendment.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was produced by Jackie McDermott and engineered by David Stotz. Research was provided by Jackie McDermott, Alexandra "Mac" Taylor, Paige Britton, and Lana Ulrich.
ADDITIONAL RESOURCES
- Lange v. California oral argument transcript
- Heien v. North Carolina (2014)
- Welsh v. Wisconsin (1984)
- Carpenter v. United States (2018)
- Riley v. California (2014)
- United States v. Cano (cert petition pending)
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.
The Supreme Court recently heard oral arguments in Lange v. California. The case asks whether a police officer violated the Fourth Amendment when he entered a garage without a warrant while following a suspect into his house. Here to discuss the case and the future of the Fourth Amendment are two of America's leading Fourth Amendment scholars and advocates. Jeffrey Fisher is professor of law and co-director of the Supreme Court Litigation Clinic at Stanford.
He has argued over 40 cases before the Supreme Court, including most recently the Lange case on behalf of Arthur Lange. Jeffrey, wonderful to have you back on the show.
Jeffrey Fisher: [00:01:02] Thanks very much for having me.
Jeffrey Rosen: [00:01:04] And Donald Dripps is Warren Distinguished Professor of Law at the University of San Diego Law School. He has written widely in constitutional law, criminal law and criminal procedure, with a special focus on the Fourth Amendment.
Donald, it is wonderful to have you on the show.
Donald Dripps: [00:01:20] It's a great, great opportunity to talk about this very interesting case.
Jeffrey Rosen: [00:01:24] It is indeed. And I'm so excited to jump right in. Jeff, you argued the case. You just stood before the justices and told them what was at stake in the case. Now, please sum up for We the People listeners, what are the facts of the Lange case and what is at stake in the case?
Jeffrey Fisher: [00:01:40] I'm happy to do it, but, but but Jeff, remember, I didn't stand in front of the justices. I sat at a table and a speaker phone as we do now in the COVID era, but I did my best as we all do. So, so the Lange case arises out of Sonoma, California, and my client Arthur Lange was driving home one evening, and a police officer was parked off the road and noticed as Mr. Lange drove by, that he was honking his horn and playing very loud music. So the officer decided to follow him for a bit, several blocks,with a couple of turns involved.
And then right as Mr. Lange got to his driveway and activated his garage door opener, the police officer activated his lights. Mr. Lange went ahead and pulled into the garage. And so this is about a four second period where Mr. Lange pulled into his garage, hit the garage door to close it.
The officer jumps out of this car, and managed just before the garage door closed to stick his leg under the garage door and thereby gain entry into the garage, which for Fourth Amendment purposes is Mr. Lang's home., and commenced questioning Mr. Lange about about his loud music and what he was doing and whatnot. During that questioning the officer developed a suspicion for the first time that Mr. Lange had been drinking ultimately, he pulled him out of the garage, and arrested him, and the state of California ultimately convicted him for drunk driving.
The question in the case that has gone all the way from the trial court in California to the U.S. Supreme Court is whether the officer violated the Fourth Amendment when he entered the garage, that is, Mr. Lange's house, without a warrant. The Fourth Amendment generally requires a warrant to enter the home for an arrest, even of a felon.
But the U.S. Supreme court has said that when exigent circumstances are involved, officers can dispense with the warrant requirement. And that's a general test. There are a couple of cases over the years where the Supreme Court has gestured toward a concept that is called hot pursuit where the Court has said that perhaps a hot pursuit is a form of exigent circumstances, when an officer is tailing,tailing, somebody, attempting to stop or arrest him and the person then flees into the home.
And so that's what this case is really about, is it's really the first time the Court has looked in a serious way at this hot pursuit concept, at least in the concept of -- at least in the context of a minor offense. The most the most relevant case is several decades old where the police followed somebody in on suspicion of felony drug distribution.
And it's an opinion that was talked about a lot in the oral argument. It is somewhat of an enigma. But as the case goes to the court in Lange, we all agree that that was a felony case, and this is a misdemeanor case. And what the issue boils down to is whether hot pursuit, insofar as the court has started to understand that term, carries into the misdemeanor context and allows an officer to follow somebody into the home who he's suspected committed nothing more than a misdemeanor. So I think I'll stop there and I'm happy to develop that and let Don wade in.
Jeffrey Rosen: [00:05:06] Thank you very much for summing up so well. Don, how would you sum up the stakes in the case? Jeff has put them on the table and there are at least four different positions about whether or not a hot pursuit for misdemeanors should create a categorical exemption to the warrant requirement. How would you describe the different positions and the stakes in the case?
Donald Dripps: [00:05:30] Well, you don't know quite what's at stake in a Supreme Court case until they issue the opinion. And this could -- anytime you have a, a warrant issue it, it could be some very narrow fact-bound thing about whether they were exigent circumstances here, or it could be a big referendum as it were on, on warrants versus warrantless searches and so on.
So,the different approaches in the, in the case. I mean, I, so I'm the I think that the, the underbrush here is whether exigent circumstances and hot pursuit are the same thing, different things, or not. And hot pursuit in the old cases, 300 years ago, pre-Fourth Amendment, hot pursuit was you can break in if you were chasing the suspect with probable cause and had had your, your your Irish up as it were, you were, you were in fighting mode.
You were had a lot of adrenaline, and it was just unfair to the pursuers to make them stop at the door of the house. And that just doesn't make a lot of sense anymore. That was in a, you know, in an era when they were desperately trying to encourage private parties and amateur constables and the like, to, to be active in law enforcement and our problems today are very different than that.
So I I'm if the state of California wants a broad rule for hot pursuit as distinct from exigent circumstances, so even if there is no evidence that might be destroyed, and even if there's no risk the suspect might escape we can still break into the house to arrest him if we have probable cause, and we were about to catch him before he got in and slammed the door. I, that string strikes me as a tough position. and they might win it, but it seems like it's a a tough position. What it has going for it is another old Fourth Amendment dilemma between clear rules and, and case-by-case adjudication.
And generally the court for a long time now, 34 years, has preferred clear rules. In California wants a clear rule. It says, hot pursuit doesn't matter, whether it's felony or misdemeanor. And I, and of course, I guess that, you know, I don't know, you'd have to ask Jeff about this, but, but the, the I think what Chief Justice Roberts might say is we have a bright line rule here, which is you need warrants to get into private homes.
And it's the scope of the exception, which has to be policed case by case. So I'm very interested to see what they do with hot pursuit versus exigent circumstances.
Jeffrey Rosen: [00:07:54] Thank you very much for that. And thank you for helping us understand that the question is whether or not hot pursuit and exigent circumstances are always treated as the same thing for the purpose of exceptions to the warrant.
Jeff the, the, We the People prep team and I identified four different positions in the briefs in the case, and I'll just put them on the table and see if you think they're right. You argued for no categorical rule. You said the exigent circumstances doctrine should be applied in all situations, both felonies and misdemeanors, on a case-by-case basis.
And you noted sometimes suspects enter their home for innocuous reasons when law enforcement officers are trying to stop them, like a scared teenager runs into the house. The Solicitor General for California proposed a categorical rule: you can have warrantless entry for hot pursuit for felonies only. Another California Amicus said all pursuit should allow for warrantless entry, whether felonies or misdemeanors, and then you have the Biden administration for the Solicitor General's office, arguing for a even broader categorical rule, all flights should be treated as hot pursuit and an officer's entry into the home. Is presumptively reasonable. How did it, how did our team do in summarizing the positions and and why do you think your position is right?
Jeffrey Fisher: [00:09:11] Let me say a couple of things about the way you summarized At least the way I understand the positions, I think you're close, but maybe not exact.
So you're certainly right that our view at one end of the spectrum is that is that the, the question is simply on a case-by-case basis, whether there's exigent circumstances, whether the officer thinks that the suspect would otherwise escape destroy evidence, harm somebody, et cetera. The state of California, just to be clear about this, because I think Don what Don said, might've been a little bit confusing.
This is a very unusual case, for the state of California, of course, is the other side of the V from my client and brought this prosecution, but at the U.S. Supreme Court, the state of California agrees with us that the Fourth Amendment was violated. And so if the state of California says that hot pursuit allows officers to follow somebody into the home without a warrant, if they believe there's a felony has been committed, but not as in this case, if all the officer has probable cause for is a misdemeanor.
So the state of California, it's asking, as you said, Jeff, for a categorical rule on felonies, case-by-case on misdemeanors and that cashes out for for our view on the bottom line, which is the Fourth Amendment was violated here. And so then we have two other positions that, that, that argued that the Fourth Amount was not violated.
The first is the federal government, which I think is less dramatic than the Amicus. So that's where I think I depart from the way your team organized things. The federal government says they're just like the state of California. There's a categorical exception to the warrant requirement for felonies.
But what the government says for misdemeanors is it's case-by-case, but there is a presumption that the officer is allowed to go in without a warrant that, that somehow has to be rebutted and the Court explored a little bit what this presumption would mean. And it's a little bit unclear, but sort of the thumb on the scales for the legitimacy of the entry and the government goes ahead and says, they thought the entry in this case was legitimate without a warrant.
And then on the furthest end of the spectrum, you have the court-appointed Amicus. This is not an Amicus for California, but it is a court-appointed Amicus to defend the judgment below because the state of California is no longer doing so. The court-appointed Amicus argues that there's a categorical rule all the way down for entry into the house for any crime and actually the court-appointed Amicus, clarified an argument in response to questioning that, not just for misdemeanors, for any infraction. So any violation of law allows the officers to go into the house without a warrant.
Jeffrey Rosen: [00:11:45] Very helpful. Thank you very much for clarifying so well. So Don now Jeff has helped all of us understand that the two poles are, are much, as you stated in your initial comments. Jeff's position that it should be a case-by-case evaluation of whether there are, in fact, exigent circumstances in hot pursuit cases, and then the categorical rule attributed to the Amicus that we have a presumption, that there are exigent circumstances in all circumstances, all the way down from felonies to misdemeanors. Between those two poles, which do you think is right?
Donald Dripps: [00:12:23] Let me just say Jeff's entirely right about the court-appointed Amicus which is a very unusual procedural thing. And it signals that the court is really pretty serious about this case. That rather than just say, well, the state's not fighting we're going to go ahead and decide this case and appoint somebody to argue a pro law enforcement position.
So, so you know, I let's start with the old problem of bright line rules versus case-by-case adjudication. And here we're using torts suits and the exclusionary rule to modify police behavior in the future. So we want the law to be clear enough for the police to follow. On the other hand that, you know, all rules are over-inclusive or under inclusive.
So, so we have some hard choices here. I think I'm skeptical about a felony misdemeanor line. You know Justice Breyerriar says in the oral argument in Massachusetts, we have some very serious crimes that are punishable by up to two and a half years, 30 months, incarceration that we call misdemeanors. And then what-- at the back end of the spectrum, what about these infractions?
I don't believe in California, you could arrest for a noise violation. That's just, that's just a traffic code violation for which it would be a citation only offense under local law. But because the Supreme Court said in the Atwater case, that for federal purposes, any violation that's denominated criminal can support a lawful arrest.
That would mean that so far as the Fourth Amendment is concerned that you could arrest for the noise violation. And, and so to say the line should be felony versus misdemeanor, is is I think, you know, that's that's not a very bright line when it comes right down to it. And it's particularly blurry when you add in, I forget how the man pronounced his name, but H E I E N.
Heien or Heien against North Carolina where the, where the Supreme Court held that a reasonable mistake about whether conduct is a crime will support a probable cause to make the arrest, even if the officer is wrong that it's not a violation of the vehicle code to have tinted windows or a broken tail light or the like.
And so if it's okay to make the felony entry, even if it's not really a felony, even if the officer just believes the offense of suspicion is a felony then the line between felony and misdemeanor is going to be even blurrier than before. And that then leaves you with the question of what other tests would you use and, and that's a problem.
Jeffrey Rosen: [00:14:42] Jeff you faced this question from several justices during the oral argument, as Don notes uh Justice Breyer talked about the difference between the way Massachusetts and California treat misdemeanors. Chief Justice Roberts said the line could be problematic because it's hard to draw a line between felonies and misdemeanors.
Drunk driving might not be a felony, at least on the first offense, but could be on the third offense; Justices Sotomayor and Kagan made similar points about how some felonies are dangerous and don't create exits and circumstances and so forth. I'm sure you remember each of the questions help our listeners understand what you think the essence of the Justices' concerns was and what your response was.
Jeffrey Fisher: [00:15:24] Sure. Well, first Don, if it's useful to you and your teaching as my former client, I will tell you Brady Heien's name is pronounced HINE, from the, from the case you referenced. So so as to the distinction between felonies and misdemeanors, remember our position is that there is no bright line distinction between the two in terms of how the Fourth Amendment works.
So, so all the concerns that the justices were raising, we think are, you know, legitimate to some degree and just what, what we think the Court should do is what the Court signals in a, in a case several years ago called Welsh v. Wisconsin, which is consider the seriousness of the offense and the nature of the offense.
For example, was it a violent offense or not as part of the totality of the circumstances as to whether or not there's exigent circumstances. But don't draw bright distinctions doctrinally between felonies and misdemeanors, for the reason that sometimes officers will know precisely what they're dealing with, just as he said, Jeff. It's the state of California and the federal government that argue that police should have different rules kick in depending on whether it's a felony or a misdemeanor.
And there are other places in police practices where that distinction exists as well. So I think there are, you know, the Court can choose can choose either pathway depending on what it thinks the best and most workable rule is.
Jeffrey Rosen: [00:16:51] Don, the Welsh and Wisconsin case. When I teach, I always thought would be a big solution to so many of our Fourth Amendment problems, that emphasis on proportionality, calibrating the seriousness of the offense to justify the intrusiveness of the search is something that the court has not been very willing to do in cases like the Atwater case, which you mentioned. As you listened to the oral argument, did you hear a more sympathy for Jeff's position of that kind of proportionality analysis? And when you heard the justices who were skeptical of Jeff's position, who were they and what were they saying?
Donald Dripps: [00:17:25] So I confess that I got this, this assignment two days ago and I have glanced at the oral argument and read the briefs. If you wanted to read the tea leaves, Jeff is going to be a lot better at that than I am.
I think that the problem that you have with this, the argument about factoring, the seriousness of the offense in has been around for a long time, the late Bill Stuntz made a very strong argument that we ought to categorically have different rules depending on the seriousness of the crime, to bifurcate terrorism off from other kinds of investigations, for instance and ait's always been very difficult to figure out just what that line should be.
One place where we have drawn that line is in police use of deadly force. And under the Garner case, the offense of suspicion can justify deadly force if it's rape or murder, but not if it's burglary. And so that would be one possible place to look for the kinds of serious offenses that would justify emergency action.
What about the cases where the police don't have a hot pursuit, but they have probable cause to arrest, and they find the suspect already indoors. There's an elaborate test on that that does take into account the seriousness of the offense. This is, cases like Olson and Payton and a lower court case, the Supreme Court sided with approval, the Dorman case, and they can rush the house without waiting for a warrant under circumstances where there's danger to life or, or a very serious criminal might escape or evidence might be destroyed and so forth.
So sometimes it does factor in. One, one reason why it's not formally factored in is because we rely on the exclusionary rule so much. And very often judges are far more reluctant to exclude evidence in serious cases than they are in less serious ones. And so there's a sense that the Fourth Amendment really is transsubstantive in application as if not non-transsubstantive in application that in a murder case, evidence is going to be let in where it would not be let in, in an ordinary say drug case.
But you ought to ask Jeff where, where he thought the justices were going on this. My own preconception was that Justice Roberts, Chief Justice Roberts has been a very stalwart proponent of warrants. And, and he would be the person who would lead a coalition to, to, to rule for Lange. But you ought to ask Jeff that question.
Jeffrey Rosen: [00:19:42] Thank you so much. And I will ask Jeff that question. And Jeff, as I read the transcript, you had a lot of friends on both sides of the aisle at the Court Justice Alito proposed a rule that would lead to the evidence against Lange being suppressed. He said police officers should only enter the home without a warrant when they're truly in hot pursuit.
And in Lange's case, there wasn't a chase and he didn't flee. And then Justice Gorsuch noted the rules at the time of the founding era, when there was no rule, allowing a police to enter a home without a warrant to pursue an individual committed, ah, suspected of a misdemeanor; and he said, why should we create a rule less protective than what everyone understands to be the case of the Fourth Amendment as an original matter.
So you were there -- tell us, actually, were you standing up when you talked on the phone? I just envisioned you're standing for the justices and then who, who were the justices who seemed least sympathetic to your position and why.
Jeffrey Fisher: [00:20:31] Well, to answer your procedural question, I was sitting down I've done a couple of these, a few of these over the phone. And I stood up for the first one and then I decided, you know, this is a different mode of argument and I'm going to sit down. But hopefully, hopefully just, you know, just as effective.
As you know, in all honesty, I want to be careful about sort of making a prediction about my own case, or certainly making a prediction about what the justices are thinking. I think that you're right, that one interesting thing about this case is that they should, particularly for the public that may not follow the Court quite as closely, you know, it's, it's one of those cases that shows that the Court is different than a political body and that different different kinds of legal argument can cut across ideology and, you know, the president who appointed particular justices and all the rest.
So I think one fascinating thing about this case, as you said, is that justices from all different perspectives showed some sympathy for our position and some skepticism. And that went all the way around. For all four advocates. But I think that one thing that gives me hope on our side of the case is as you say, we have a robust historical argument that we've made in the brief that as you said, Justice Gorsuch seemed supportive of which is that constables at the time of the English common law at the time of the founding were not allowed to enter the home without a warrant, categorically in support -- in pursuit of misdemeanants. There were restrictions about when, when officers could enter a home without a warrant that basically boiled down to you know quelling an affray or or apprehending a violent perpetrator.
And so if that rule were carried forward to today, which, you know, history sometimes has challenges of translation to the, to the present day. But this doesn't seem to me that there's such a kind of situation where it's that hard to do so you know, that would seem to favor us. And so for some of the more conservative justices on the Court who who follow a more originalist philosophy, you know, that that set of arguments may appeal to them.
You know, as for the other part of what you asked about, Welsh and the proportionality principle being carried into Fourth Amendment law, let's just say I sure hope the Court the Court pays attention to that. Again, I'm not going to predict whether they will or they won't, but you know, this concept originates in the Court's jurisprudence, at least with Justice Jackson, former Attorney General of the United States who said, in Welsh I'm sorry, said in a case in the forties that that, you know, it can be all out of proportion for the officer to break into a home in pursuit of a you know, somebody committed a petty act.
I think if there was, you know, words from the, from our past that are all the more relevant today, given current events, I think that's a that's, that's perhaps a, a good idea that didn't get that didn't get carried out as forcefully as it might have, and one might hope that the Court will return to that concept in this case.
Jeffrey Rosen: [00:23:30] Don, what would the implications of a proportionality analysis be for the future of digital privacy? You've written about the privacy of private papers that are stored digitally. This is one of the central open questions before the Court, under what circumstances should the government or other subpoenas be able to seize digital papers that are stored in the third party cloud. Would one solution be to allow more intrusive searches of digital papers for more serious crimes and not to allow them for less serious crimes, and how significant might proportionality be for the future of digital privacy?
Donald Dripps: [00:24:07] Yeah. I know the Fourth Amendment, we really have, you know, a poor person's Fourth Amendment, which is about police violence and a rich person's Fourth Amendment, which is about data privacy and the different, the criteria and methodologies that are used should be the same as the same constitutional text.
So we should be using the same principles. But the, the situations are very different. And as Jeff says, this is a matter of, of translation at some point. You know, I, I, I didn't read the oral argument completely, but I did go back to Hale and Blackstone and Hawkins. And they do say that misdemeanors are different, but on the other hand we don't want a rule that can be manipulated by legislatures just by slapping the felony label on on, on a fence and raising the ante, making the offense more serious than otherwise would be just to justify more police investigative powers. And that's a, that's a quite a troubling concern.
And, and it's the same sort of thing where the legislature decides to make evasion of police power or refusal to cooperate with the police an offense. It turns out the California court, in this case said that that Lange had violated misdemeanor statutes requiring immediate submission to the police. So, so as to your question, trying to transpose that over to data, it really gets into assumption of risk analysis and whether legislatures could make the fact that you shared the data,, give, give government access to it. And you know, one of the problems with privacy is that it's always relative, agent relative. And the fact that you share something with one person doesn't mean that you share it with Uncle Sam. And they went retreated somewhat from that doctrine in the Carpenter case.
But how far they're going to go with it is anybody's, anybody's guess. That was five to four, although maybe maybe six to three, depending on how you count Justice Gorsuch's opinion which was labeled a dissent, but kind of looks like a concurrence. So, so if it where I think it's going on the data side is not seriousness of the offense, fil non, but about contraband versus lawful documents.
And these border search cases, some of the lower court opinions have emphasized that when the agents are looking for child pornography, which is illegal to possess that's the extent of their justification. And if they're looking for communications that provide evidence of other crimes as distinct from documents that are pointing to child porn images, that that can be confiscated that they, they can't do that without a warrant, even at the border.
And so maybe that's a seriousness of the offense rule in disguise that we have one rule for child porn, and we have another rule for other kinds of cases, but formally it's a rule about property rights of the sort that Jeff was talking about Justice Gorsuch being sympathetic to.
Jeffrey Rosen: [00:26:59] Jeff Don has distinguished, but between Justice Gorsuch's trespass based or property rights based view of the Fourth Amendment, which in the Carpenter case involving the search of cell phones insisted on a violation of the terms of service contracts as a sort of property rights peg for finding a Fourth Amendment violation, and by contrast, a more proportionality based approach that might in fact balance the seriousness of the search against the intrusiveness of the crime. Is that a fair, a very 60,000 foot view of one of the big debates in Fourth Amendment doctrine, and how do you think it's playing out both in the digital privacy and in the police violence cases?
Jeffrey Fisher: [00:27:40] I think that's close, but I'm not sure those two concepts are mutually exclusive. One quick, one quick factoid also worth remembering about digital privacy and seriousness of the offense is that in the Jones case about a decade ago where the court first looked at, what you might think of as digital privacy in the context of GPS tracking, remember Justice Alito wrote a concurrence joined by several other justices saying that even though the Fourth Amendment was violated in that case by 28 days worth of GPS tracking of somebody's car, if there had been, if the person had been suspected of a more serious offense, perhaps the GPS tracking without a warrant would have been okay. So there's a form of proportionality being suggested not only more recently, but in the digital privacy context. That was a concurring opinion, but several justices joined justice Alito in that opinion.
So that's, that's an interesting thing. So I don't know that proportionality is mutually exclusive from a property rights or trespass rights approach to the Fourth Amendment. But I think it is definitely true as you say, that Justice Gorsuch also with, also with Justice Thomas have been increasingly interested in, in that sort of an approach that's worked for them.
As justice Scalia was before them in the Jones case that we just mentioned. And you know, when new justices are appointed to the Court you know, Byron White used to say, each time we get a new justice, we're a new Court. And I think with President Trump's appointees, you know, the public view again might be that here we have, you know, Republican appointees and conservatives, but but the Court doesn't necessarily follow politics. And I think Justice Gorsuch's robust view of the Fourth Amendment, at least in terms of a property rights approach could be one of the real significant aspects of his appointment and his joining the Court.
Because because the early returns are that he may be a fervent defender of Fourth Amendment rights that at least when they can be conceptualized in a historical property rights, trespass rights basis. And as you say even in the Carpenter case where obviously we didn't have anything like cell phone service search or data at the time of the founding, he seemed open to the concept with further briefing and development of translating privacy rights that existed 200 years ago to modern day cell phone data. So so I think that'll be something very, very interesting to watch in coming years. And of course we don't yet know whether Justice Barrett might also be involved in this project, but if she is then you have three justices who, who who would who wouldn't be open to those sorts of arguments.
Don, as Jeff says
Jeffrey Rosen: [00:30:17] the property based approach and the proportionality approach are not always mutually exclusive. How do, how does the property approach play out in cases involving police violence that are so central to the national debate? And tell us about the police reform bill now pending before the house.
Donald Dripps: [00:30:37] Yeah, so, so my, my factoid on police violence in this country is that police officers in the United States kill more Americans than Canadians kill -- kill Canadians. The WaPo file lists about a thousand police homicides a year, and they have about 600 homicides a year altogether in Canada.
Now there's a difference in the population size and so on. But nonetheless, when one out of every 15 homicides in this country is a police homicide that's you know, indicative of, of an issue. Now what, you know, one problem with relying on the Supreme Court and the Fourth Amendment to do our work here is that, you know, it takes a long time to get a case there, and Supreme Court cases are complied with, most, most police follow those rules in good faith, but, but some, some do not.
And the consequences that follow when they don't are not not always as severe as they would be in some other contexts. So, so the police reform bill eliminates qualified immunity, and provides among other things for state institutional reform injunction litigation brought by state's attorney general against municipal police departments.
And those, those reform injunctions are very strong medicine where you appoint a special monitor to, to administer a consent decree with the police department and it includes all kinds of use of force requirements and reporting requirements and, and a video camera, dashboard, camera, and uniform camera requirements special use of force policies, none of which themselves are required by the Fourth Amendment.
But if there's a pattern or practice of systemic violations then then remedial injunction is authorized by the Rodney King Law. And one of the things that's in that reform bill would be to allow state attorneys generals to pursue that kind of litigation. So we'll see what comes out of it in the Senate.
But it it's the property interest there is not, it's not poverty. It's Liberty. It's the security of the person. And, and there your historical antecedent is not the trespass, but, but battery and false arrest and false imprisonment. And those traditional tort rules are what we're talking about.
There are seizures not searches and when the police use violence that, that requires justification as a constitutional matter, it would be better if more of that regulation were done at a sub constitutional level by by statutes and administrative regulations. And the truth is that much of it, most of it has, has had to be done in this country thus far by constitutional rulings from the Supreme Court.
Jeffrey Rosen: [00:33:13] Many thanks for that, and for that helpful distinction between property and battery like interests, Jeff Justice Thomas on the Supreme Court has signaled some sympathy for narrowing the scope of qualified immunity as a constitutional matter, whether or not the house bill passes. How significant would it be if either Congress or the Court narrowed the scope of qualified immunity for Fourth Amendment litigation?
Jeffrey Fisher: [00:33:39] As to how significant, it would be the devil would be in the details, I think, as to how dramatically the court would limit qualified immunity. If the court went all the way as Congress has proposed to abolish qualified immunity, that could have a very substantial effect on police practices in the field, and then also on Fourth Amendment litigation, because it would create a much broader opportunities to litigate the legitimacy of searches and seizures in civil cases in the federal courts.
Whereas now that litigation is to a large extent stunted by the qualified immunity doctrine, that requires courts to dismiss those cases as long as the officer acted within a broad realm of reasonableness. If the court merely restricted qualified immunity to make the reasonableness test a little more demanding on officers, you know, that that impact might be, might be more marginal.
Jeffrey Rosen: [00:34:29] Don there's a cert petition pending before the Supreme Court in a case called U.S. v. Cano. The question is what level of cause is needed for border searches of cell phones and laptops it could be quite significant for the future of digital privacy and could answer the question of whether or not warrantless searches are limited to contraband or not. Tell us about that case and that broad question about the level of, cause needed for computer searches and cell phone searches, which the Court addressed unanimously in the Riley case saying that arrest by itself, didn't justify the warrantless search of a cell phone. Where does the Court seem to be heading in this important direction?
Donald Dripps: [00:35:07] So we, when the digital situation, we start with the pre-digital law and then try to figure out where it's going to go now that we have this different world. And so in the Riley context, the pre-digital rule was that the arrest allowed the police to completely search a person including all their effects. And so even if the arrest was for missing a court date on traffic they could conduct a thorough search of the person, including any documentary evidence.
So, so if you had in your, in your backpack or your briefcase or your purse, letters to God, my personal prayer journal the police could prowl through that simply because you had been put under arrest and the justification for that was we can't do this case by case, the police need standardized procedures.
All of this stuff would be inventoried at the lockup anyway. And so, so the arrest subsumes whatever privacy you have. And in the Riley case, the court has you say, repudiated that and said that the plenary search power that comes with arrest stops at the cell phone. All right. Digital is different is the doctrine, DDD. And digital devices are just, just they're they're, they're kryptonite, they're constitutional kryptonite because of the density and sensitivity of the information that they contain.
Now to the border case situation. The pre-digital law was that the federal border authorities could do any search that was not forbidden by Congress. And so they could search any incoming mail or communications, any incoming cargo the person of anyone crossing the border, all of their effects. And that gets you to this problem about what do you do when the airliner lands and people get off an international flight, carrying their cell phones, their tablets, their laptops all of which contain that same dense concentration of potentially very sensitive information.
And at the same time, of course there's a lot of nasty stuff people store on their digital devices child pornography is the main thing. And, and the inspectors are, are rightly concerned about the possibility that child pornography might be imported. And so in these cases, the lower courts have been struggling with this as to just what, what can be done at the border.
And, and, and what can be done remotely from the border. When can the devices be--? So you can, I guess, consider different levels of this. One level is can they look at it at all, a cursory inspection of the cell phone or the computer to make sure that it is a cell phone or a computer? Yes. Can they do a more elaborate forensic search of it and plug in the I forget the name of the Cellebrite, I think is the leading police technology here, which can read all the files and potentially copy all the files.
So reading the files is one thing, copying them is another. Seizing the device for a forensic application, remote from the border is another issue. So how do you go on with your travels if the agents have confiscated your cell phone or your, or your laptop that you need for work or whatever.
And so the lower courts have come up with different tests about this, and it's only a matter of time before the Supreme Court decides this issue. And that one you know what to say, cert petition, well on the, when, when the U S asks for certiorari, it's a little different than when the other, other parties asked for certiorari. So you can never predict whether a cert grant will, will come out, but, but we need some guidance from the Supreme Court on this.
And I think it's, it's fair to say that as soon as they take a case the border search power is going to be less than it was in the pre-digital era. How, how much less that's open.
Jeffrey Rosen: [00:38:48] What a great answer. DDD digital is different, and digital searches are constitutional kryptonite are both memorable phrases of Fourth Amendment wisdom.
Jeff, what can you tell us about the important question of what level of cause is needed for a border searches of cell phones and laptops and how the lower courts are dividing on this question? And, and the doctrinal choices that the Supreme Court will be facing?
Jeffrey Fisher: [00:39:11] Sure. Well, I'm not fully familiar with the entire sweep of lower court jurisprudence, but I can tell you the basics starting with the Cano case, you mentioned. The Ninth Circuit issued a decision in that case saying that that officers can do warrantless searches to some degree of smartphones as they cross the border.
But but only for contraband. If the, if the, if, if the, if the government is going to conduct a border search, the Ninth Circuit reasoned, it has to be -- they're trying to carry out the purposes of border searches, which is to interdict contraband as it crosses the border, not to search for just ordinary evidence, ordinary criminality.
So that's the Ninth Circuit's view on this. The other most recent decision is from the First Circuit on the other side of the country and in the Northeast. And the First Circuit recently issued a decision that upholds the federal government's current policies in this, in this regard, across the board.
And so the First Circuit agreed with the federal government to do basic inspections of cell phones and similar devices as they cross the border. There's no suspicion or warrant of any kind of required. The government's view is that when they do a deeper forensic search, the Cellbrite kind of thing you mentioned earlier that they need reasonable suspicion of criminal activity for contraband to do that sort of a search.
And the First Circuit said that that's enough. And so there is some --the First Circuit, at least perceived some disagreement between it and the Ninth Circuit. And we'll see what the Supreme Court does as it, as it sees as it views the government's petition in the Ninth Circuit case and any others that come up.
One of the things I would just add to what Don said is that, is that as you start to unpack the issues here and whenever the Court might think it appropriate to address them. You know, Don painted the image I think was just a powerful one of the airliner landing on the tarmac, and then people exiting the airplane with all of their devices.
But also remember as Don said that I believe there's some historical support for the notion that sort of letters or packages sent overseas could be inspected at the border as they enter the country. And so if that's what we're talking about, and also with the border searches, I don't know that anyone needs to land on an airliner.
It might just be that somebody in Paris needs to send an email to somebody in New York or, or, or in any kind of digital file as they crossed the border in the, in the digital manner. Does that mean that the government has the ability without a warrant, without reasonable suspicion to just monitor all electronic communications that entered this country.
And so there's a host of questions that are waiting, you know, there may be decades to come before we get them all answered, but it's a very complex question.
Jeffrey Rosen: [00:41:52] Don Jeff mentioned at the top that the Fourth Amendment is an area where the justices do not divide along conventional ideological lines.
Many of the most important recent cases have been unanimous. Like the Riley case we discussed involving the cell phone search at the border. Other cases the justices are unanimous about the result, even when they divide about the reasoning. Taking a property based approach or a proportionality approach is, do you think that that's a fair statement that the Fourth Amendment is an area that transcends ideological divisions and might we continue to see a unanimous or multipartisan majorities moving forward?
Donald Dripps: [00:42:33] Well, I, I agree that these search and seizure issues often leave ideological stereotypes behind. I don't think that signals an era of unanimity by any means. And so, so for instance in Carpenter the issue was whether the government could get your cell phone location data without a warrant founded on probable cause.
And it was a five to four decision. And good arguments could have -- good judges could have gone either way. But, but, so, so Chief Justice Roberts, right, you know whom you would think of as a conservative judicial type wrote the majority in favor of a robust application of the warrant requirement.
Anthony Kennedy who's often lionized by liberals for his views on sexual privacy, he was, he dissented in that case, wrote the lead dissent adhering to precedents in effect saying that, that this new digital world doesn't make any difference with respect to information that you share with your cell phone provider. And so, so I think that's where we're going and we don't know yet.
I think Justice Gorsuch is historically oriented by by method, but, but you know, sort of pro-individual, antigovernment by ideological orientation. We don't know yet much about Justice Kavanaugh on these issues. And, and we know, I think very, very little indeed about Justice Barrett on these issues.
So when you think about the Court as a nine member committee I guess for the most part, we want to see clear majority so the police know agents know what they can, and can't do. The, the three to three to three plurality decisions are a real headache in the day-to-day operation of the system.
But I would, I'd be surprised if there was unanimity in say a border search case with digital privacy at stake. If there were unanimity on what the rule would be going forward, I could see a broad opinion saying. Just as in Riley, just as in Carpenter the old pre-digital cases are, are, are insufficiently restrictive of government data access.
But I don't see them coming up with a test reasonable suspicion remote from the border forensic versus cursory. I don't see them resolving those issues unanimously. That's just a prediction, which is a very dangerous business with the Supreme Court.
Jeffrey Rosen: [00:44:59] Well, it's time for closing arguments in this wonderful discussion about the Lange case and the future of the Fourth Amendment Jeff, you made an eloquent rebuttal argument before the justices, and I'll ask you to sum up for our We the People listeners why the Lange case is important and how you think the court should decide it.
Jeffrey Fisher: [00:45:19] Thank you. And I'll do that -- preface that by saying, thanks so much for having me. And one last comment about Don, everything Don just said about the Court and digital privacy, which is very interesting is that, you know, the Chief Justice wrote both the Riley decision about cell phone searches and the Carpenter decision about cell site location data.
And so as you start to think, I don't want to overstate things here, but as you start to think of different justices, having different legacies this may be a signature issue for him digital privacy, and not one that leaps immediately to the mind of the ordinary American. But he's written two very powerful, important decisions about digital privacy. And so Chief Justice Roberts seems to have a particular interest in that issue.
As to the Lange case, I think from my perspective, one thing that makes the Lange case particularly interesting and important is that it's the first case about everyday policing on the streets of America that the court has heard since George Floyd and since the sort of outcry and increased awareness of, of, of, overaggressive and sometimes deadly police tactics.
And just like those cases in so many other tragedies, you know, this started with a minor offense and, and, and indeed a traffic, a traffic infraction. And the thing that I'm very interested to just see, even apart from that sort of doctrinal particulars that we've all talked about today is how the court's overall perspective towards policing in America might have changed along with the rest of the country's with this increased awareness of the, of of what can happen when the, when the adrenaline is too high, both in the officer, perhaps, then in others involved in the, in the altercation.
There were, there were a set of. Briefs submitted to the court that detailed some of the real tragedies that have occurred over the years. So when officers burst into people's homes, because that is where people are the most protective or the most apt to to be frightened, confused, and even fight back.
And so I think as you watch the Lange case, and as you sort of imagine what kind of country we want, we want to live in where we have to strike the balance between between law enforcement and personal security. No, I'm hoping at least for, for, for my client and for and, and for others who care about the issue that the Court will will modulate this kind of police behavior and say that at least in situations like this officers need to pause get a warrant and, and, and make sure they're proceeding lawfully.
Jeffrey Rosen: [00:47:59] Thank you so much for that. Don, the last word is to you. Please tell our great We the People, listeners, why the Lange case is important, why they should care about it and how you think the Court should decide it.
Donald Dripps: [00:48:11] So, so my thanks to both of you for a really great discussion. And the Lange case, I mean, at the end of the day, this case is about warrants and warrants, you know, they, they're almost always granted when they're applied for.
But they're not applied for, unless the police are really keen on making the arrest or making the search. So, so it's not a formality. Warrants as, as, as Justice Jackson said, back in the 1940s, it's a neutral and detached decision-maker, not police engaged in the often competitive business of ferreting out crime, especially in high emotions as some of these cases are.
And I think Jeff is quite right. The NACDL brief --this case didn't turn bad, but if there'd been a dog or a worried homeowner with a firearm in this case who, who knows what, what might've happened. And the NACDL brief reports, some very sad stories about that kind of thing.
But warrants don't -- aren't just about neutrality, right? There also about a time cost to engage in the most intrusive kinds of searches. So if an officer has to get a warrant they have to think about, do I want to spend a day and a half writing up the affidavit, getting a screen, presenting it to a judge before I get to, to break in the door, you know?
And, and when they're served, right, there are requirements on warrants to be served knock and announce, the presumption against no-knock warrants, a presumption against nighttime warrants. The whole point of the warrant process is to make it a matter of law rather than a matter of spontaneous violence.
And so I would say I would, I would close this case the way Chief Justice Roberts closed the Riley case by saying you want to, you want a clear guidance as police. If you want clear guidance, the law says, get a warrant.
Jeffrey Rosen: [00:49:58] Thank you so much. Jeffrey Fisher and Donald Dripps, for a superb conversation about the Lange case and the future of the Fourth Amendment. I can't resist the temptation to say the case is submitted, because it was, we had a taste of Jeff's wonderful Supreme Court argument. And we also have from both Jeff and Don, the sense of the issues that the Supreme Court will be confronting in the important years ahead.
Jeffrey Fisher, Donald Dripps, thank you so much for joining.
Jeffrey Fisher: [00:50:27] Thank you. It was a real pleasure.
Donald Dripps: [00:50:29] Thanks to all. And Jeff, keep the faith and carry on the good work!
Jeffrey Rosen: [00:50:37] Today's show was engineered by David Stotts and produced by Jackie McDermott. Research was provided by Jackie McDermott, Mac Taylor, Paige Britton, and Lana Ulrich. Homework of the week, read the transcript in the Lange case, and please learn from it and hope it leads to all sorts of further reading and learning. And please rate, review and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone who's hungry for a weekly dose of constitutional debate.
Thanks so much to those of you who've been leaving ratings. They're much appreciated. And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, the passion, the engagement of people from across the country who were inspired by the nonpartisan mission of constitutional education and debate.
I've been hearing from many of you, how much you value us as a nonpartisan platform for convening. And it is so meaningful to convene these discussions in a non-partisan way. And you can support our mission by becoming a member at constitutioncenter.org forward slash membership. Or give a donation of any amount to support the work, including this podcast, @constitutioncenter.org forward slash donate. On behalf of the National Constitution Center. I'm Jeffrey Rosen. .
