A Modest Fourth Amendment Proposal

Searches for drugs should be per se "unreasonable" and prohibited

I read a lot of appellate cases. It’s part of my job. But it also means I have some knowledge of problems that show up repeatedly in such cases, even in areas I don’t ordinarily practice in.

In Fourth Amendment law, the entire doctrine is driven by drugs. Obviously other sorts of searches and seizures occur, whether its an ordinary traffic stop because you ran a red light at an intersection, or a search of your home when the police have probable cause to suspect your involvement in a murder.

But many of the specific legal rules applied under the rubric of the Fourth Amendment, and many of the policies behind those rules, are about drugs. Why is there a plain view exception, which allows police to seize anything they can lawfully see from a place they are allowed to be in? Well, one big reason is because the police can seize contraband, i.e., drugs and drug paraphernalia. Why is there an automobile exception, allowing the police to search your car without a warrant? Because you might be transporting drugs. Why is there an exigent circumstances exception? You might think it’s just because sometimes emergencies require searches before the police can get a magistrate on the line to give them a warrant, but one of those emergencies is you might flush your evidence, i.e., your drugs, down the toilet.

And so much Fourth Amendment litigation is about drugs. Police making pretextual traffic stops to justify searches for drugs. Police stopping and frisking people on the street, hoping to find drugs. Police arguing that a person being in a high crime area, or “looking suspicious”, or the subject of an anonymous tip, justifies them snooping around to find drugs.

Obviously the War on Drugs is not merely a Fourth Amendment problem- it’s a problem of bad legislation which criminalizes a lot of relatively harmless or victimless activity, that can’t be effectively suppressed anyway, and then imposes draconian punishments on defendants. And, of course, it’s a race problem as well- Blacks bear the brunt of much of the aggressive policing associated with the War on Drugs.

But the Fourth Amendment represents an unutilized tool to seriously cut back on the War on Drugs. The Fourth Amendment prohibits “unreasonable searches”. As even a formalist/textualist like Antonin Scalia used to point out, this means you have to balance costs and benefits. It’s written right into the text.

So why, then, do we use the same Fourth Amendment rules for drugs that we do for truly dangerous activities? Yes, if the police initiates a pretextual traffic stop of a suspected terrorist or murderer or serial robber, I get it. Yes, if the police gets an anonymous tip that a serial killer is hanging out at someone’s house, again, I get it. Yes, if getting the warrant will allow the suspect time to throw away all the evidence of the murder, I get that too.

But there’s no reason we should be saying that the same tactics that are reasonable to stop violence are also reasonable to arrest people for drugs. Indeed, there’s no reason to say that is reasonable to even search people for drugs.

I can imagine a lot of people will immediately respond to this with a very strong, very principled objection. “Don’t state legislatures (at the very least) and the federal government (under controlling Supreme Court precedent) have the power to enact drug laws? Don’t courts owe them deference?” To which my answer is, sure, they owe them deference. But judges, not legislatures, safeguard the Fourth Amendment. And, in any event, states could still enact restrictive drug laws, even if they really wanted to, even if such laws did not justify searches and seizures.

Police would still be able to arrest anyone they personally witnessed possessing or selling drugs. They still would be able to stake someone out, as long as they did it in a public place, until they saw a drug transaction take place. If a search related to a more serious crime turned up drugs, they could still prosecute on the drug offenses.

But they simply could not use drug laws as a justification to invade people’s privacy. It’s worth noting, as well, that this would not be a completely unprecedented legal rule. There is already a similar, albeit not identical, rule with respect to obscenity. We don’t think about obscenity very much anymore because the world is awash in pornography, but there are still occasional obscenity prosecutions (usually of the hardest of hardcore porn depicting violence against women, bestiality, and other very extreme content), and since 1969 (a time when there were still lots of obscenity prosecutions), the police have lived under a rule, announced in Stanley v. Georgia, that holds that they cannot prosecute people for privately possessing obscenity in their homes. While the majority opinion in Stanley based this rule on First Amendment rights, a concurrence also pointed out that allowing searches of people’s homes for obscenity would violate the Fourth Amendment as well. If the courts wished to rigorously apply the reasonableness requirement to bar searches for drugs, they have the precedent available to do so.

How would the rule work? The basic rule would be it is unreasonable to search for drugs without independent suspicion/probable cause of other criminal activity that would otherwise justify the search. If the police only have probable cause or reasonable suspicion of a drug offense, they can’t do a search or seizure. If they have an independent justification of another offense, they can do whatever search or seizure is justified by that independent justification- so they can’t use a traffic stop as a pretext to search your car for drugs, unless there was sufficient justification for a search of your car based on some other ground. They can’t bring a drug-sniffing dog over, because the dog isn’t necessary to perform a search for other criminal activity.

We’d have to do one other modification of the law to make this work as well- we’d have to limit the “pretextual search” doctrine, which currently allows the police to conduct broad searches even after a relatively minor infraction like a traffic stop. If the pretext is to justify a search for drugs, that would need to be prohibited.

And the benefits of such a rule would be enormous. Obviously, in one fell swoop, many of the legal justifications for pulling people over for Driving While Black would be eliminated. An enormous amount of privacy would be restored, as the sheer number of searches conducted by police would fall significantly. Police would also be freed up to work on solving and preventing more serious crimes. Asset forfeitures- where the government takes people’s property as an “instrument of crime”- would decline, as many such forfeitures arise out of drug cases. We’d have better policing and more privacy.

And, we’d get there through an entirely principled legal ruling. The framers of the Constitution didn’t anticipate drug laws, really, at all, and certainly did not anticipate a world in which billions of dollars of police funds are used to conduct extensive searches and seizures of ordinary citizens in a failed effort to stop people from using a product they really like to use and seem to be able to obtain anyway despite the police’s efforts. There’s no reason to think that the Fourth Amendment requires that any police tactic that is permissible in a terrorism case is also permissible in a drug case. There’s certainly nothing in the text or history of the Fourth Amendment that requires that conclusion.