The Real Fourth Amendment Problem: Getting Substantive Issues Decided At All


In yesterday's column, I praised the Supreme Court's ruling last month in Riley v California, which barred police from examining cell phones without a warrant.

Now, here's my more important point, one I guarantee you're not going to see in the other commentary you're reading. It's a little more difficult to follow, but bear with me, because it's much more significant in the long term.

It turns out the same Supreme Court that gave us this excellent decision has also done a lot to prevent novel Fourth Amendment claims from making it to appeals courts in the first place.

In our judicial system, there are trial courts and appellate courts. States have three levels (trial courts, appeals courts and state supreme courts), and in the federal system there are trial courts and regional appeals courts (called circuit courts). The Supreme Court sits on top of both systems.

The way our legal system works is that if you think the trial court got something wrong, you can appeal to the appellate court. And if you think the appellate court got it wrong on your appeal, you can appeal again, in federal cases right to the Supreme Court; and in state cases first to the state supreme court, and then to the Supreme Court.

The idea is that if the Supreme Court takes your case (they decide around 80 a year, out of thousands of petitions) and decides that the appellate court below was wrong, then you get a do-over, which usually means a new trial.

And not just you, but everyone else with similar cases on appeal at the time.

Fourth Amendment cases all start when a criminal defendant requests that the trial judge suppress (exclude from trial) some piece of evidence the government has against him. The defendant says the police violated the Fourth Amendment to get the evidence; the government says they didn't. The parties will argue about the applicable case law interpreting the Fourth Amendment, which will probably be from the appellate court governing the jurisdiction.

If the trial court denies the suppression motion and the evidence comes in, then if the defendant is convicted, he can appeal the ruling to the applicable appellate court. And if he loses there, he petitions for cert in the Supreme Court.

The case gets to the Supreme Court, thus, after one (or, in state cases, two) lower appeals courts have issued their rulings. Litigants trying to persuade the Supreme Court to accept a petition for certiorari (or “cert”) have to explain to the Court why the lower court or courts got something wrong.

Take a typical case. The trial court denies a defendant's suppression motion based on case law from the local appellate court. You'd think that if the Supreme Court subsequently decided that the appellate court was wrong (that is, that the evidence should have been suppressed), the conviction would get reversed, and the defendant would get a new trial without the evidence coming in.

That's how things worked until June 2011, when the Court decided a case you've probably never heard of called Davis v United States.

Davis, just like Riley, involved a “get lucky” bust following an incident-to-arrest search of a vehicle. The search turned up some evidence for which the police had neither probable cause nor a warrant. The trial court ruled that it could come in anyway, because it was found in a search incident to arrest.

The trial court ruling was based on an appellate court ruling that warrantless searches of vehicles incident to the arrest of the driver were permissible. All the lower appellate courts held that, based on what everyone thought was a pretty clear 1981 Supreme Court case called New York v Belton.

But then, in 2009, while Davis was appealing his conviction, the Supreme Court decided a case called Arizona v Gant, and held—to the surprise of most observers—that the lower courts had misunderstood Belton, and that vehicle searches incident to arrest are not, after all, permissible.

So what happens to Davis? While his case was on appeal, the Supreme Court ruled that the search that led to his conviction was unconstitutional. Shouldn't he get a new trial? Prior to June 2011, any lawyer would have said “Yes (Duh!).” Under the traditional bread-and-butter rules of our legal system, his conviction would be vacated and his case remanded for a new trial without the evidence from the search.

But the Court decided it was going to change those bread-and-butter rules for the Fourth Amendment. The Court held that when police were relying on an appellate case that authorized a particular search at the time of the search, then the evidence from that search should not be suppressed—even if, while the conviction is on appeal, that appellate case turns out to be wrong, and the search is held to be unconstitutional by a higher appellate court (e.g. the Supreme Court itself).

Think about what that means: the Court is saying, “Yes, you're right about the law; your conviction was based on unconstitutionally obtained evidence, but who gives a shit, because you're a criminal.”

That's not an exaggeration: the Davis opinion radiates contempt for suppression of evidence, which is the only remedy available under the Fourth Amendment for illegal searches. (As the joke goes: You want to sue for damages? Here's the price of the door we broke down.) Yes, obviously, Davis was a criminal, but every single Fourth Amendment case involves a criminal. And if there's no longer any suppression remedy for unconstitutional searches so long as a regional appellate court had wrongly approved them at the time, there's no way for challenges to particular search practices to even reach the Supreme Court.

Do you see why? The reason is that so long as there's an appellate decision approving that type of search, there's no error in denying the suppression motion at trial, regardless of whether the search itself may ultimately be held unconstitutional. And if there's no error at trial, there's no error to raise on appeal.

And that situation in fact came about in Riley. There was a binding California appellate decision (People v Diaz) approving of incident-to-arrest phone searches. So under Davis, the Supreme Court could have simply declined to address the substantive issue and held that the search was done in good-faith reliance on binding appellate case law, and thus suppression would not be required in any event.

That's certainly going to be the outcome for Riley on remand. And it will be the outcome for all cases in states in which binding appellate case law held that phone searches were permissible incident to arrest.

The state should have made that argument in the trial and appellate courts below. Think about how it would have gone:


Riley: The phone search violated the Fourth Amendment.

Appellate Court: It doesn't matter whether the search violated the Fourth Amendment, because Diaz said it was OK.

Riley: But Diaz was wrong.

Appellate Court: So what? The Supreme Court says that you're not entitled to suppression even if Diaz was wrong. Affirmed.


Riley: The trial court erred in denying my motion to suppress because the phone search violated the Fourth Amendment.

Appellate Court: It doesn't matter whether the search violated the Fourth Amendment, because there was an appellate case at the time saying it was ok.

Riley: But that appellate case was wrong.

Appellate Court: So what? Under Davis, that doesn't matter, so we're not going to address it.

So now you're Riley's lawyer, and you want cert in the U.S. Supreme Court. You have to argue that there was some error below. But there isn't any error on this record. The state courts followed the Supreme Court's holding in Davis to the letter. The suppression motion was correctly denied under Davis, so the courts never reach the substantive Fourth Amendment question. If you want lots of technical details about how Davis affects suppression analyses in different procedural postures, you can find them here.

So how did Riley even get to the Court? Well, he got lucky in that the state didn't bring up Davis, either in the Supreme Court or in the California courts. (The California decision is available here.) The state could have made a Davis argument, though, because as a matter of law, under Davis, Riley had no suppression claim at the time of trial or appeal even if Diaz turned out to be wrong and phone search was ruled unconstitutional.

And the Supreme Court could have ruled under Davis, too, if it chose. The substantive Fourth Amendment issue in Riley was arguably not even justiciable because under Davis its resolution could not affect Riley's actual case.

My bet, for what it's worth, is that the justices talked at conference, and agreed that they wanted to end phone searches incident to arrest. So the Court ignored its own ruling in Davis and decided the substantive Fourth Amendment question.

Maybe the lesson from Riley is that the Court will just decide substantive Fourth Amendment questions when it feels like it. But Davis will still stop a lot of those questions from getting to the Court in the first place, because unlike the Supreme Court, lower appellate courts don't have the luxury of ignoring Supreme Court rulings.

There's something wrong with an appellate regime that denies suppression of evidence that was unquestionably unconstitutionally obtained, just because there was an erroneous appellate case on the books at the time. The whole point of appellate law is supposed to be that you get to challenge existing case law as wrong, and if you ultimately win, you get the relief you were asking for at the outset.

Davis is a terrible decision, because it undercuts the core function of constitutional jurisprudence in our society, which is to continually apply basic constitutional constraints to new social and technological contexts.

And the history of Fourth Amendment law in the Supreme Court includes many cases in which the Court reversed longstanding precedents from appellate courts. In recent years, the Court has upended appellate-court consensus on thermal imaging scanners (Kyllo), GPS trackers (Jones), incident-to-arrest vehicle searches (Gant), the and the rights of passengers during traffic stops (Brendlin). Under Davis, many cases like those can't even be brought.

So if you like Riley on the merits, and think it's high time that the Courts started paying attention to our privacy rights in the age of smartphones, you should be worried about the effects of Davis.

The Fourth Amendment, more than any other amendment, has to constantly evolve with technological changes. And it can't do that unless courts at all levels have to confront, and decide, the full gamut of novel cases that come before them.

Davis tells lower courts not to bother. I'm glad the Supreme Court decided to step in and decide this one on the merits. But I'm concerned by the cover it's given lower courts to avoid doing the same.

Caleb Mason is an attorney at Miller Barondess LLP in Los Angeles, and a former federal prosecutor. He welcomes comments from readers.

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