Keeping the Republic. Christine Barbour

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СКАЧАТЬ the Supreme Court in 2014 ruled that the digital information stored on one’s cell phone is protected by the Fourth Amendment. If the police want to look at your data, they must get a search warrant first.

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      Yet another modern area in which the Court has had to determine the legality of searches is mandatory random testing for drug or alcohol use, usually by urine or blood tests. These are arguably a very unreasonable kind of search, but the Court has tended to allow them where the violation of privacy is outweighed by a good purpose—for instance, discovering the cause of a train accident,⁷³ preventing drug use in schools,⁷⁴ or preserving public safety by requiring drug tests of train conductors and airline pilots.

      Finally, in 2012 the Court held, five to four, that the Fourth Amendment is not violated by the requirement that someone arrested for a minor infraction and not suspected of concealing a weapon or drugs could nonetheless be subjected to an invasive strip search. In Florence v. Board of Chosen Freeholders of County of Burlington, the majority ruled that the plaintiff could be subjected to a strip search despite the fact that he had been arrested for something that he had not in fact done and that would not have been a crime in any case. The key issue for the Court was that the defendant was going to be held in the general jail population, and correctional officers are rightly concerned with jail security, which outweighs an individual’s privacy rights.⁷⁵

      The Exclusionary Rule

      By far the most controversial part of the Fourth Amendment rulings has been the exclusionary rule. In a 1914 case, Weeks v. United States, the Court confronted the question of what to do with evidence that had been obtained illegally. It decided that such evidence should be excluded from use in the defendant’s trial.⁷⁶ This exclusionary rule, as it came to be known, meant that even though the police might have concrete evidence of criminal activity, if obtained unlawfully, the evidence could not be used to gain a conviction of the culprit.

      exclusionary rule the rule created by the Supreme Court that evidence seized illegally may not be used to obtain a conviction

      The exclusionary rule has been controversial from the start. In some countries, including England, illegally obtained evidence can be used at trial, but the defendant is allowed to sue the police in a civil suit or to bring criminal charges against them. The object is clearly to deter misbehavior on the part of the police, while not allowing guilty people to go free. But the exclusionary rule, while it does serve as a deterrent to police, helps criminals avoid punishment. The Court itself has occasionally seemed uneasy about the rule.⁷⁷ Not until the 1961 case of Mapp v. Ohio was the exclusionary rule finally incorporated into state as well as federal practice.⁷⁸ But extending the reach of the exclusionary rule did not end the controversy. Although the Warren Court continued to uphold it, the Burger and Rehnquist Courts cut back on the protections it offered. In 1974 they ruled that the exclusionary rule was to be a deterrent to abuse by the police, not a constitutional right of the accused.⁷⁹ The Court subsequently ruled that illegally seized evidence could be used in civil trials⁸⁰ and came to carve out what it called a good faith exception, whereby evidence is admitted to a criminal trial, even if obtained illegally, if the police are relying on a warrant that appears to be valid at the time or on a law that appears to be constitutional (though either may turn out to be defective),⁸¹ or on a warrant that is obtained in error. In 2009 the Roberts Court ruled that to trigger the exclusionary rule, the police conduct must be deliberate.⁸² The Court’s more conservative turn on this issue has not silenced the debate, however. Some observers are appalled at the reduction in the protection of individual rights, whereas others do not believe that the Court has gone far enough in protecting society against criminals.

      Protection Against Self-Incrimination

      No less controversial than the rulings on illegally seized evidence are the Court’s decisions on unconstitutionally obtained confessions. The Fifth Amendment provides for a number of protections for individuals, among them that no person “shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has expanded the scope of the protection against self-incrimination from criminal trials, as the amendment dictates, to grand jury proceedings, legislative investigations, and even police interrogations. It is this last extension that has proved most controversial.

      In 1966 the Warren Court ruled, in Miranda v. Arizona, that police had to inform suspects of their rights to remain silent and to have a lawyer present during questioning to prevent them from incriminating themselves. The Miranda rights are familiar to viewers of police dramas: “You have the right to remain silent. Anything you say can and will be used against you. . . .” If a lawyer could show that a defendant had not been “read” his or her rights, information gained in the police interrogation would not be admissible in court. Like the exclusionary rule, the Miranda ruling could and did result in criminals going free even though the evidence existed to convict them.

      Reacting to public and political accusations that the Warren Court was soft on crime, Congress passed the Crime Control and Safe Streets Act of 1968, which allowed confessions to be used in federal courts not according to the Miranda ruling, but according to the “totality of the circumstances” surrounding the confession. In 2000, despite the fact that some justices had been highly critical of the Miranda ruling over the years, the Court upheld the 1966 decision, stating that it had become an established part of the culture, and held the 1968 Crime Control Act to be unconstitutional.⁸³

      Right to Counsel

      Closely related to the Miranda decision, which upholds the right to a lawyer during police questioning, is the Sixth Amendment declaration that the accused shall “have the assistance of counsel for his defense.” The founders’ intentions are fairly clear from the Crimes Act of 1790, which required courts to provide counsel for poor defendants only in capital cases—that is, those punishable by death. Defendants in other trials had a right to counsel, but the government had no obligation to provide it. The Supreme Court’s decisions were in line with that act until 1938, when, in Johnson v. Zerbst, it extended the government’s obligation to provide counsel to impoverished defendants in all criminal proceedings in federal courts.⁸⁴ Only federal crimes carried that obligation until 1963. Then, in one of the most dramatic tales of courtroom appeals (so exciting that it was made into both a book and a movie called Gideon’s Trumpet), a poor man named Clarence Earl Gideon was convicted of breaking and entering a pool hall and stealing money from the vending machine. Gideon asked the judge for a lawyer, but the judge told him that the state of Florida was not obligated to give him one. He tried to defend the case himself but lost to the far more skilled and knowledgeable prosecutor. Serving five years in prison for a crime he swore he did not commit, he filed a handwritten appeal with the Supreme Court. In a landmark decision, Gideon v. Wainwright, the Court incorporated the Sixth Amendment right to counsel.⁸⁵

      The Gideon decision was a tremendous financial and administrative burden for the states, which had to retry or release many СКАЧАТЬ