ADELPHIA LAW JOURNAL ARTICLE

THE EFFECT OF 9/11 ON THE UNITED STATES SUPREME COURT - THE SHRINKING OF FOURTH (AND FIFTH) AMENDMENT FREEDOMS IN RESPONSE TO TERRORISM

By Donald J. Ramsell

I. Introductory Paragraph

"It is a recurring theme in history that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis."

Lord Johan Steyn, lecture to the British Institute of International and Comparative Law, November 25, 2003.

On September 11, 2001, a group of foreign terrorists hijacked 4 airplanes. Two flew into the twin towers of the World Trade Center, destroying them. The third plane struck the Pentagon, only miles from the Supreme Court of the United States. The fourth plane crashed before reaching its final destination; however public opinion has held that the target of the 4th plane was either the White House or the United States Capitol building, both only blocks away from the Supreme Court of the United States. The 9/11 Commission Report - Page 531, Note 167. (CIA notes,"DRG Research Notes," Jan. 17, 2004. In another exchange between Atta and Binalshibh on September 9--two days before the attacks--it still appears as though the White House would be the primary target for the fourth plane and the U.S. Capitol the alternate. See CIA report, Documents captured with KSM, Sept. 24, 2003.) All of Washington D.C. was evacuated that day,( "September 11: Chronology of terror" http://www.cnn.com/, September 12, 2001 Posted: 12:27 PM EDT) and rumors spread about potential targets, which included the Nation's Highest Court. Over 3,000 people were killed in these acts of terrorism. The personal affect of this day upon every citizen of the United States, including the nine Justices of the United States Supreme Court, its Clerks and employees, cannot be denied. That day is now commonly referred to as '9/11'.

Immediately after 9/11, President Bush declared a 'War on Terror'. "2001: US declares war on terror", http://www.bbc.co.uk/, September 12, 2001. The United States Congress declared war on, and invaded Afghanistan, a harbor for terrorism the group of men who planned 9/11: Osama Bin Laden and a network of terrorists named 'Al Qaeda'.

Two days after 9/11 it was reported that the United States Senate, "enraged by the terrorist mayhem in New York and Washington, approved legislation that would make it easier for the FBI to get warrants for electronic surveillance of computer transmissions." "Terrorism Bills Revive Civil Liberties Debate", Washington Post, September 14, 2001.

Congressional leaders immediately called for the curtailing of civil liberties. In an article printed in the Washington Post on September 14, 2001, they reported:

"We're in a new world where we have to rebalance freedom and security," House Democratic Leader Richard A. Gephardt (D-Mo.) said yesterday. "We can't take away people's civil liberties . . . but we're not going to have all the openness and freedom we have had." "Terrorism Bills Revive Civil Liberties Debate", Washington Post, September 14, 2001

It was also reported that within the days immediately after 9/11, Senate Minority Leader Trent Lott, R-Miss., repeated the warning: "When you're in this type of conflict, when you're at war, civil liberties are treated differently." "Freedom flees in terror from Sept. 11 disaster", http://www.freedomforum.org/, Sept. 19, 2001.

Since 9/11, billions of dollars have been earmarked by Congress and local governments to increase the security of airports, public buildings and other areas of public concern throughout the United States. The President began secret eavesdropping on the private conversations and domestic activities of U.S. citizens. "President Acknowledges Approving Secretive Eavesdropping", Washington Post, December 18, 2005.

Further, a heightened degree of fear, distrust, and conservatism has clouded American society since 9/11. America has demanded that law enforcement take a pro-active stance towards terrorism. Polls have shown that Americans are more willing to 'give up some of their freedoms' in favor of security. In a Harris Poll taken shortly after the attacks, Harris reported that:

"The attacks have substantially increased public support for security measures that might erode our civil liberties. A two-to-one majority believes this is necessary, and modest majorities support giving law enforcement the power to stop "people who may fit the profile of a suspected terrorist," broader power "to tap telephones, monitor cell phones and other wireless communications" and-by only 50% to 45%-the power to "read all private e-mails." Harris Poll® #46, September 19, 2001

Four in five Americans would give up some freedoms to gain security, a Gallup Poll reported in June 2002. "Poll: Americans willing to trade rights for security", USA Today, June 11, 2002.

Public opinion towards a lessening of our civil rights, and in favor of greater law enforcement powers, was also seen in another Harris Poll conducted October 3, 2001, as seen in Table 1 below:

TABLE 1

FAVOR/OPPOSE TEN PROPOSALS FOR INCREASED LAW ENFORCEMENT POWERS

"Here are some increased powers of investigation that law enforcement agencies might use when dealing with people suspected of terrorist activity, which would also affect our civil liberties. For each, please say if you would favor or oppose it."

Base: All respondents

   

Favor

Oppose

Not sure/ Decline to Answer

Expanded under-cover activities to penetrate groups under suspicion

%

93

5

1

Stronger document and physical security checks for travelers

%

93

6

1

Stronger document and physical security checks for access to government and private office buildings

%

92

7

1

Use of facial-recognition technology to scan for suspected terrorists at various locations and public events

%

86

11

2

Issuance of a secure I.D. technique for persons to access government and business computer systems, to avoid disruptions

%

84

11

4

Closer monitoring of banking and credit card transactions, to trace funding sources

%

81

17

2

Adoption of a national I.D. system for all U.S. citizens

%

68

28

4

Expanded camera surveillance on streets and in public places

 

63

35

2

Law enforcement monitoring of Internet discussions in chat rooms and other forums

%

63

32

5

Expanded government monitoring of cell phones and email, to intercept communications

%

54

41

4

Harris Poll® # 49, October 3, 2001 ©2001, Harris Interactive Inc. All rights reserved

Two of our three branches of federal government have publicly been affected by and explicitly reacted to 9/11. Is it conceivable that the judicial branch has also been affected by these same events?

This Article will review what, if any, effect the attacks of September 11, 2001, and the subsequent 'War on Terror', have had on the decisions rendered by the Supreme Court of the United States since then. This article does not ask the reader to decide whether he (or she) agrees or disagrees with the correctness of the decisions rendered by the Court since 9/11. Rather, the article invites the reader to ask: Did 9/11 have any effect on the Court's decisions? And from that posit, it is this author's opinion that 9/11 (in fact or in deed) did have a clear and identifiable effect on the civil liberty decisions since rendered by the Supreme Court of the United States.

It has been said that the 9/11 terrorists were able to accomplish their acts of terror because they exploited the freedoms enjoyed in America. They were able to live amongst us and obtain identification cards (some under aliases), travel freely in the U.S. without a strong fear of detection, they were able to communicate with each other without being eavesdropped, they were able to gain flight training in U.S. schools without background checks. Finally, they were able to board the planes they hijacked without fear of being stopped, questioned, searched for knives, or seized for being on a 'no flight' list. Many persons of intelligence have argued that, if government had been given greater authorization to question passengers, to seize them temporarily, and to conduct warrantless searches of their persons and effects, then 9/11 might have been prevented. And since 9/11, politicians have sought greater powers for law enforcement in the areas of arrest and detection. And law enforcement's power to detect crime and arrest persons falls squarely within the confines of the Fourth Amendment's prohibition against unreasonable search and seizure, and the Fifth Amendment's privilege against self-incrimination.

Thus this article will be confined then to decisions rendered by the U.S. Supreme Court since 9/11/01 in the areas involving the personal rights and freedoms of citizens, and the power of law enforcement, under the Fourth and Fifth Amendments to the United States Constitution.

It is the hypothesis of this article that since 9/11, the Court has expanded the government's right to seize, question, and search persons, and has reduced the citizen's 'right to be left alone' under the Fourth Amendment. In almost every Supreme Court decision reviewing the legality of the actions of the Government in questioning, searching, seizing or arresting a person that was rendered after 9/11, the Court found in favor of law enforcement.

Stated otherwise, since September 11, 2001, virtually every open question on the pre-arrest rights and freedoms of citizens has been decided by the Supreme Court in favor of the Government and against the individual.

II. A Brief Review of the Origins of the Fourth Amendment and the Writs of Attachment.

a. The Origins of the Fourth Amendment - Framer's Intent

In the late spring of 1776, prior to the Declaration of Independence, the Virginia Legislature adopted the following:

"X. That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted." Va. Const. Of 1776, art. X (Decl. Of Rights) as quoted in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, p. 235, n. 122 (6.3.1.8) (Neil H. Cogan ed., 1997).

Maryland, Delaware, and North Carolina soon adopted similar provisions. Thomas Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 674-676 (1999).

Shortly after the Declaration of Independence was signed, Pennsylvania adopted the following search and seizure provision:

"That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure; and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted." Pa. Const. Of 1776, art. X (Decl. Of Rights) as quoted in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, p. 235 (6.3.1.6a) (Neil H. Cogan ed., 1997).

Following the States' adoptions, the Fourth Amendment was adopted by Congress in 1789 and ratified by the States in 1791 as one of the provisions of the Bill of Rights.

The Fourth Amendment arose out of an English and colonial history of general searches and seizures without any specific or individualized cause. See generally, Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U.L.Rev. 925, 939-950 (1998).

It is from this history of abusive writs of assistance and general warrants without cause that the Framers desired to enact a prohibition against warrantless searches and suspicionless seizures. One example is a portion of the Collection Act of 1789, which provided that a warrantless search of ships could only occur if customs officials had reasonable suspicion that taxable property was concealed. Morgan Cloud, Searching Through History; Searching for History, 63 U. Chi. L. Rev. 1707, 1740-41 and note 118 (1996) (reviewing William John Cuddihy, The Fourth Amendment: Origins and Original Meaning).

In previous decisions, this Court noted that legislation passed by Congress from 1789 to 1799 applied probable cause and warrant requirements to customs officials before ships or vessels could be searched, and that these laws were a reflection of the Framers intent. See Wyoming v. Houghton, 526 U.S. 295, 300 (1999); Carroll v. United States, 267 U.S. 132, at 150-153, 45 S.Ct. 280, 285 (1925)

The final version, known as the Fourth Amendment to the United States Constitution reads as follows:

"The 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."

b. The Fourth Amendment and Framer's Intent as applied to stops of citizens during travel - "The Right of Free Passage"

From a review of the laws in effect during and immediately preceding the adoption of the Fourth Amendment, it is clear that (outside of limited customs statutes) causeless seizures of carriages, vessels, persons, papers or possessions was banned and unlawful in many of the original colonies. See e.g. Carroll, 267 U.S., at 150-151, 154, 45 S.Ct. at 284, 285; cf. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 Mem.St.U.L.Rev. 483, 489 (1994) ("While the plain language of the Amendment does not mandate individualized suspicion as a necessary component of all searches and seizures, the historical record demonstrates that the framers believed that individualized suspicion was an inherent quality of reasonable searches and seizures.")

A suspicionless seizure of citizens in order to make intrusive, interrogational inquiries of admittedly innocent motorists constitutes the same type of governmental harassment and abuse occasioned by the use of General Warrants and Writs of Assistance that our Framers so vehemently fought to forever prohibit.

Just as modern society's use of automobiles and buses has become the most prevalent mode of travel; it should come as no surprise that the majority of Fourth Amendment cases that have come before the Supreme Court since September 11, 2001 have involved persons who were traveling in automobiles or buses, as either drivers or passengers. The fact that the persons affected by government actions were in cars or buses, as opposed to being pedestrians, or on horses or carriages, should make little difference in how the Fourth Amendment is applied. In any event, the Framers of the Bill of Rights were certainly familiar with the concept of Government interference with public travel. And a review of the origins of the Fourth Amendment, as well as Supreme Court Jurisprudence during the pre-automobile and early automobile era shows that it was the 'right of free passage', rather than the mode of passage, which was the driving force behind this type of Fourth Amendment protection.

As stated in Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285 (1925):

"It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise."

c. The Application of Framer's Intent to Fourth Amendment Analyses

Carroll v. United States further stated that:

"The Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." 267 U.S. at 149, 45 S.Ct. 280.

"In deciding whether a challenged governmental action violates the (Fourth) Amendment, the Court takes care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed." Florida v. White, 526 U.S. 559, 563 (1999). See also, Atwater v. City of Lago Vista, 532 U.S. 318, 326 (2001).

A review of the history and development of the Fourth Amendment establishes that the Framers would have found suspicionless seizures of citizens (other than at the borders and entry ports of the United States) to be the kind of Governmental conduct that the Fourth Amendment was designed to prevent.

It did not matter to the Framers whether a large group or a single individual was seized without suspicion - both were considered unreasonable. Nor does an individual citizen feel that his or her rights are any less violated simply because others are also seized without suspicion. "The view that mass, suspicionless searches, however evenhanded, are generally unreasonable remains inviolate in the criminal law enforcement context ..." Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 671 (1995); Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).

"More important, there is no indication in the historical materials that the Framers' opposition to general searches stemmed solely from the fact that they allowed officials to single out individuals for arbitrary reasons, and thus that officials could render them reasonable simply by making sure to extend their search to every house in a given area or to every person in a given group. See Delaware v. Prouse, 440 U.S. 648, 664, 99 S.Ct. 1391, 1401- 1402, 59 L.Ed.2d 660 (1979) (REHNQUIST, J., dissenting) (referring to this as the 'misery loves company' theory of the Fourth Amendment)". Vernonia, 515 U.S. at 670.

If the Framers intended that something less than individualized suspicion could be employed when persons were traveling in 'highly mobile' devices, they had ample opportunity to express that intention, yet they never did. Carriages, carts, vessels and drays were commonly in use and highly regulated during the 18th century. See, e.g., 30 Geo. II, ch. 22, Sec. 5, 13, 22 Statutes at Large 107-108, 111 (1757) (authorizing the arrest of individuals obstructing "publick streets, lanes or open passages" with "pipes, butts, barrels, casks or other vessels" or an "empty cart, car, dray or other carriage"); 27 Geo. II, ch. 16, Sec. 7, 21 Statutes at Large 188(1754) (authorizing arrest of negligent carriage drivers); Atwater, 532 U.S. at 335.

III. Prior Historical Events and Social Pressures that have affected the Supreme Court of the United States

The Supreme Court of the United States has never been completely immune to significant historical events and perspectives. Below are some of the biggest examples of how the Supreme Court has been previously influenced by the events of their times.

A. Slavery and the Civil War - The Dred Scott Decision

During the early years of the United States, the issue of slavery came before the Supreme Court, as Civil War loomed on the horizon.

Dred Scott, a slave, sued for his freedom. Dred Scott v. John F. Sanford, 60 U.S. 393, 15 L.Ed.2d 691, 1856 WL 8721 (U.S. Mo.) (1856). Scott won. The Supreme Court of Missouri reversed. The case then came before the United States Supreme Court.

At this time in history, the states were severely divided over the issue of slavery. Tension amongst the States was severe, and the Court was called upon to resolve an issue that, years later, would lead to Civil War.

The Court ruled that Scott, a 'free negro of the African race', whose ancestors were brought to this country and sold as slaves, was not a 'citizen' within the meaning of the Constitution of the United States. Therefore, Scott did not have the ability to sue or be sued. This rendered his lawsuit a nullity, and the verdict for his freedom was therefore reversed, and Scoot's suit for freedom dismissed. Ibid. The Court's opinion basically held that, slavery having been acceptable when the Constitution was framed, it would remain the law of the land until the Constitution was changed, stating:

"No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give words of the constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted", said the Court. Scott, 60 U.S. at 426, 15 L.Ed.2d 691.

As the world now knows, the Dred Scott decision was plain wrong, then and now. Scott stands as an example of a judicial decision whose result was clearly influenced by the political pressures of those times.

B. The Separate but Equal Doctrine - Plessy v. Ferguson

In 1892, a man who was described as seven-eighths Caucasian and one-eighth African blood boarded a passenger train in Louisiana, and sat in a passenger car which was reserved for 'Whites Only'. When he refused to move, he was arrested, imprisoned, and held to trial. Refusing to plead guilty, he brought a writ of prohibition, asserting that the laws of Louisiana were in violation of the United States Constitution. The Louisiana Supreme Court found that the law separating whites and non-whites was constitutional.

At this time in American society, intense public discussion raged against giving rights to non-whites, as both northern and southern states were unwilling to accept a color-blind society.

Having accepted the case for review, the Supreme Court of the United States held that the Louisiana law, which provided for equal but separate accommodations for white or colored races did not violate Constitutional Amendment 13, which abolished slavery and involuntary servitude. Plessy v. Ferguson (1896) 163 US 537, 16 S.Ct. 1138, 41 L.Ed. 256.

It wasn't until years later, in 1954, that the U.S. Supreme Court realized the errors of its ways, and overruled this sad moment in American History. See Brown v. Board of Education (need cite).

C. World War II - Japanese Internment

December 7, 1941. "A day that will live in infamy", said then-President Franklin D. Roosevelt. That day, the Nation of Japan bombed Pearl Harbor, a U.S. Naval base in the territory of Hawaii, in a surprise attack. One day later, war was declared against Japan. On March 21, 1942, a military order was issued directing U.S. citizens of Japanese ancestry, as well as all persons of Japanese Ancestry, to leave California, Washington, Oregon, Idaho, Montana, Nevada, Utah, and southern parts of Arizona. The Act of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. 97a stated in part:

* * * whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense. 56 Stat. 173, 18 USCA 97aId. at 199, 227.

Further, these U.S. citizens were ordered to assemble at relocation centers, where they were 'resettled' to different parts of the country in internment camps.

Fred Korematsu, a United States citizen of Japanese descent, refused to obey these orders. He was convicted in Federal Court for remaining at his home in San Leandro, California. In 1944, with World War II still raging, the Supreme Court of the United States accepted review.

"No question was raised as to petitioner's loyalty to the United States", states the opinion. In fact, the Court acknowledged that legal restrictions against a single racial group are 'immediately suspect'. Stating that 'pressing public necessity may sometimes pustify the existence of such restrictions (against single races or ethnicities) the United States Supreme Court upheld the constitutionality of the order excluding persons of Japanese ancestry from the West Coast. Since Mr. Koramatsu was not convicted of failing to enter the internment camps, the Court chose to pass on the question of the validity of that order. The Courts' refusal to rule of the validity of Japanese internment effectively kept tens of thousands of other detainees of Japanese ancestry detained for the balance of the war.

True justice came later for Fred Koramatsu. In Korematsu v. United States, 584 F.Supp.1406 (1984) Mr. Koramatsu petitioned for a writ of coram nobis to vacate his 1942 conviction for being in a place from which all persons of Japanese ancestry were excluded pursuant to a civilian exclusion order. The Government filed across motion to dismiss the prosecution against petitioner. The District Court held that petitioner was entitled to a writ of coram nobis to vacate his conviction where there was substantial support in the record for proposition that Government deliberately omitted relevant information and provided misleading information in the papers before court concerning whether the actions taken were reasonably related to the security and defense of the nation and the prosecution of the war, and where the Government failed to rebut petitioner's certificate setting forth collateral consequences he believed he suffered and would continue to suffer as result of the 1942 conviction and where the Government failed to rebut petitioner's showing of timeliness. Petition granted and countermotion denied.

On August 10, 1988, President Ronald Reagan signed the Civil Liberties Act of 1988. The Act was passed by Congress to provide a Presidential apology and symbolic payment of $20,000.00 to the internees, evacuees, and persons of Japanese ancestry who lost liberty or property because of discriminatory action by the Federal government during World War II .Civil Liberties Act of 1988, "Restitution for World War II internment of Japanese-Americans and Aleuts," 50 App. USCA s 1989, 50 App. USCA s 1989 states:

The purposes of this Act (sections 1989 to 1989d of this Appendix) are to -

(1) acknowledge the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II;

(2) apologize on behalf of the people of the United States for the evacuation, relocation, and internment of such citizens and permanent resident aliens;

(3) provide for a public education fund to finance efforts to inform the public about the internment of such individuals so as to prevent the recurrence of any similar event;

(4) make restitution to those individuals of Japanese ancestry who were interned;

(5) make restitution to Aleut residents of the Pribilof Islands and the Aleutian Islands west of Unimak Island, in settlement of United States obligations in equity and at law, for -

(A) injustices suffered and unreasonable hardships endured while those Aleut residents were under United States control during World War II;

(B) personal property taken or destroyed by United States forces during World War II;

(C) community property, including community church property, taken or destroyed by United States forces during World War II; and

(D) traditional village lands on Attu Island not rehabilitated after World War II for Aleut occupation or other productive use; (6) discourage the occurrence of similar injustices and violations of civil liberties in the future; and

(7) make more credible and sincere any declaration of concern by the United States over violations of human rights committed by other nations.

-SOURCE- (Pub. L. 100-383, Sec. 1, Aug. 10, 1988, 102 Stat. 903.)

IV. Supreme Court Decisions reviewing the Fourth Amendment since September 11, 2001 - Their holdings, analysis, departure expansion or distinction of prior decisions, and the possible effect of 9/11 on the Court's rulings

A. Brosseau v. Haugen 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)

1. Holding - where officer has probable cause to believe that suspect posed threat of serious physical harm, either to officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. U.S.C.A. Const.Amend. 4.

Officer Brousseau from Puyallup, Washington shot Kenneth Haugen in the back as he attempted to flee from the law in his vehicle. Haugen then filed a civil rights suit against the police, alleging excessive force. According to the facts, Officer Brousseau responded to a report of men fighting. When she arrived, one of the men (Haugen) tried to get away. Brousseau, id., 125 S.Ct. at 597. While being chased, Haugen was able to jump into a Jeep. Brousseau pointed a gun at him, and ordered him to get out of the car. Haugen ignored her commands, searching for keys to the car. Brousseau struck the window with her gun 3 or 4 times before shattering the window. Haugen eventually found the keys and started the Jeep. As the Jeep began to roll, Brousseau shot Haugen in the back. Brousseau stated that she did so because she was 'fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen's] path and for any other citizens who might be in the area.' Brousseau, id. at 598.

The District Court granted summary judgment to the police officer, but the Court of Appeals reversed. 339 F.3d 857 (2003). The appellate court found that the officer violated a clearly established right, and thus was not entitled to qualified immunity.

In a per curiam opinion, the Supreme Court reversed the Court of Appeals, and reinstated the grant of summary judgment in favor of the police. The Supreme Court held that the officer was entitled to qualified immunity. The Brousseau court Acknowledged that precedent holds it unreasonable for an officer to 'seize an unarmed , nondangerous suspect by shooting him dead', citing to Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694 (1985). However, the Court in Brousseau also noted that where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, it is not unreasonable to prevent escape by deadly force. Brousseau id. at 598. Without expressing an opinion on the issue of whether Brousseau in fact had probable cause, the Court turned to whether, either way, she was entitled to qualified immunity.

As stated in Brousseau, qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Turning to the question of whether it was 'clearly established' that Brousseau's conduct was violating Haugen's fourth Amendment rights, the Court held that it was not. Thus, Brousseau was entitled to qualified immunity, and the Court dismissed the claims that Haugen had made under the Civil Rights Act. Brousseau, id at 599-600.

Was Brousseau a movement toward less Fourth Amendment protections, post 9/11? Justice Stevens felt that it was. In his dissent, Stevens pointed out that limits on the use of deadly force to prevent escape had been well settled by the Court for almost two decades. Brousseau, id. at 601 (STEVENS, J., dissenting).Citing to Garner, supra at 11-12, 105 S.Ct. 1694 (1985), Stevens repeated that "the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failure to apprehend him does not justify the use of deadly force to do so....A police officer may not seize an unarmed, nondangerous suspect by shooting him dead." Stevens felt that the issue of whether Brousseau was entitled to immunity was a fact-specific question for a jury; not a question for the court 'as a matter of law'. Brousseau, id. at 603 (STEVENS, J., dissenting). Justice Stevens was equally critical of the Court for deciding the case per curiam (i.e. without the benefit of full briefing and oral argument) Brousseau, id. at 604(STEVENS, J., dissenting).

The Brousseau decision is another example of a Fourth Amendment issue being decided in favor of law enforcement. It thus fits the general theme of this article, that virtually all of the Fourth Amendment decisions handed down by the Court since 9/11 have favored law enforcement. To the extent that Brousseau appears to depart from prior precedent, (i.e. Garner supra.) one could argue that the Court is now more willing to allow the police additional leeway in apprehending criminals, even through the use of deadly force.

B. Devenpeck v. Alford 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)

1. Holding - Arrest of driver for impersonating an officer or obstruction of justice, in connection with driver's use of wig-wag lights on his car and providing evasive answers to police officers during traffic stop, could be supported by probable cause, notwithstanding fact that such offenses were not closely related to state Privacy Act offense, involving driver's tape recording of traffic stop, which was stated by officers as the reason for arrest; abrogating Gassner v. Garland, 864 F.2d 394, Sheehy v. Plymouth, 191 F.3d 15. U.S.C.A. Const.Amend. 4.; West's RCWA 9.73.030, 9A.60.040(3) (2003).

In Devenpeck, police officers observed Defendant Alford pull behind a disabled vehicle, activate 'wig-wag' headlights, and proceed to assist the stranded motorist in changing a flat tire. When the officers were able to turn around and pull behind the two cars, Alford got in his vehicle and hurriedly drove away. Concerned that Alford was a law enforcement 'impersonator', they radioed ahead and police supervisor was able to pull Alford over. In his vehicle was discovered a special police radio, handcuffs, and a hand-held police scanner. Devenpeck, supra at 591, 160 L.Ed.2d 537. Seargent Devenpeck arrived at the scene shortly thereafter. Devenpeck noticed that Alford had a tape recorder and had been tape recording his conversations with the officers. Devenpeck then seized the recorded tape, and charged Alford with violating the Washington Privacy Act. Ibid.

Eventually, the charges against Alford were dismissed. Alford then filed suit against the police, claiming a violation of the Fourth and Fourteenth Amendments. A jury decided against Alford, finding probable cause to arrest him. Id. at 592.

The Court of Appeals reversed, however, finding that there was as a matter of law no probable cause to arrest for a violation of the State Privacy Act, and holding that the jury could not be instructed to find probable cause for any other charges (such as impersonating a police officer), because those charges were never filed and were not 'closely-related' to the charge filed (i.e violation of the State Privacy Act). Alford v. Haner, 333 F.3d 972, 975 (C.A.9 2003)

The Supreme Court reversed the Court of Appeals, holding that if probable cause existed to arrest Alford for any offense, then there was no Fourth Amendment violation, even if the charge for which probable cause existed was not 'closely-related' to the charges actually brought or filed. The cause was then remanded for the Court of Appeals to determine whether there was probable cause to arrest Alford for impersonating an officer or for obstructing a law-enforcement officer. Devenpeck supra., at 595.

The Supreme Court, in so holding, relied on Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Whren stands for the proposition that the subjective reasons or motivations of an officer for making an arrest are irrelevant for determining probable cause, so long as the objective facts themselves establish probable cause to justify the action taken.

The Court held that precedent found in Sheehy v. Plymouth, 191 F.3d 15 (C.A.1 1999) and Gassner v. Garland, 864 F.2d 394 (C.A.5 1999), which only allowed probable cause determination based on 'closely-related offenses' to the one actually brought or filed, would allow the constitutionality of an arrest under a given set of facts to "vary from place to place and from time to time." Devenpeck, 125 S.Ct. 588, 594, 160 L.Ed.2d 537, quoting from Whren, supra, at 815. Therefore, the Supreme Court abrogated Sheehy and Gassner.

The reasoning employed the Devenpeck Court for rejecting the lower court precedent and finding in favor of law enforcement, i.e. that the constitutionality of an arrest under a given set of facts could "vary from place to place and time to time", ibid., seems to be in logical contradiction to its ruling in United States v. Arvizu 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)(discussed at length later in this article). There, the Court held that certain unusual conduct may be cause for stopping someone in one part of the country, but not be cause to stop in another part of the country. Ibid.

Although Arvizu dealt with reasonable suspicion to stop, and Devenpeck with probable cause to arrest, the contradiction is perhaps most easily explained by the fact that in both cases, the Court held in favor of law enforcement.

C. Hiibel v. Nevada 524 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 ((2004)

1. Holding - (1) arrest of Terry stop suspect for refusal to identify himself, in violation of Nevada law, did not violate Fourth Amendment prohibition against unreasonable searches and seizures, and
(2) defendant's conviction for refusal to identify himself did not violate his Fifth Amendment right against self-incrimination.

In Hiibel, the police received a call that a man was assaulting a woman in a red truck on Green valley Road, Humboldt County, Nevada. A Deputy was dispatched, and upon arrival he found the truck parked on the side of the red with a man standing outside and a woman seated inside. There were skid marks in the gravel leading up to the truck. Hiibel, id. 124 S.Ct. at 2455.

The officer approached the man and explained why he was there. The officer then asked Hiibel for identification. The Defendant refused. In total, the officer asked for identification 11 times; each time, Hiibel refused. After warning Hiibel that he would be arrested if he refused to comply, the officer placed him under arrest. Ibid.

A Nevada statute requires any person whom an officer has reasonable suspicion to believe has committed, is committed, or is about to commit a crime to identify himself upon the request of a law enforcement officer. Nev.Rev.Stat (NRS) §171.123.

The issue before the Court was whether the statute violated the Fourth or Fifth Amendments to the Constitution. In a 5-4 decision, the Court held that it did not.

Prior Supreme Court cases had held that 'stop and identify' statutes violate the Fourth, and Fifth Amendments. In Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), the Supreme Court struck down a 'stop and identify' vagrancy statute as void for vagueness, because it permitted police officers to exercise unfettered discretion in the enforcement of the law.

In Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the court invalidated a conviction for violating a Texas stop and identify law on fourth amendment grounds, ruling that the risk of arbitrary and abusive police practices was too great and the stop was impermissible.

And in Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), a California law that required a suspect to give an officer 'credible and reliable' identification when asked to identify himself was also void.

But, as justice Kennedy wrote in the majority opinion, "the present case begins where our prior cases left off." Hiibel, supra, 124 S.Ct at 2457. The Court first determined that the officer did have reasonable suspicion for the initial stop, satisfying the Fourth Amendment in that regard. Ibid. thus, the Court reasoned, the defect in Brown did not exist in Hiibel. Further, the Court noted that Hiibel did not allege that the statute was void for vagueness, as was the holding in Kolender. Ibid.

Thus, the majority reasoned that the only questions before them was whether asking for identification was 'reasonable' and 'within the scope' of the stop, and whether Hiibel's arrest for refusing to answer violated his Fifth Amendment self-incrimination Clause rights. The Court held that asking for a suspect to disclose his name was reasonably within the scope of any stop of a suspect, did not alter the nature of the stop nor it's duration, and that an individual's privacy therein was minimal compared to the needs of law enforcement. Id. at 2459.

Regarding Hiibel's Fifth amendment rights, Hiibel's refusal was not based on any real or appreciable fear of incrimination, and thus such a question did not establish a reasonable ground that his answer could "furnish a link in the chain of evidence needed to prosecute him." Therefore, the Court reasoned, the question was not covered by the Fifth Amendment's protections. Id., 124 S.Ct. at 2460-2461.

The Hiibel opinion stated that knowledge of a suspect's name serves important government interests, such that it may inform an officer that the suspect is wanted for another offense, has a history of violence, or a mental disorder. It could also clear a suspect and allow police to concentrate their efforts elsewhere, said the court. Id. 124 S.Ct. at 2458.

Where the majority had difficulty was in explaining away some of the statements made in their precedent. For example, in Terry v. Ohio, Justice White had said in a concurring opinion that a person detained in an investigative stop can be detained and questioned, but he is "not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest." 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Justice White's opinion had also been cited with approval in Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), a decision which, when it held that a routine traffic stop was not custodial requiring the protections of Miranda, stated that Terry stops have a non-threatening manner, among them the fact that a suspect detained during a Terry stop "is not obliged to respond" to questions. . The Hiibel Court simply stated that they "did not see these statements as controlling." Hiibel, supra., 124 S.Ct. at 2459.

Justice Steven's dissent pointed to the inherent weaknesses that he observed in the Hiibel majority's Fifth Amendment analysis, stating that a person's identity "obviously bears informational and incriminating worth, allowing the police to obtain a broad array of information about the person through law enforcement databases. Steven's also pointed out that in Pennsylvania v. Muniz, 496 U.S. 582, 598-599, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), that even a suspect's answer to a 'birthday question' was protected by the Fifth amendment. Hiibel, 124 S.Ct. at 2462-2463 (STEVENS, J., dissenting). Lastly, Justice Stevens pointed to the farcity he saw in the majority's statement that it should not be assumed that disclosure of a person's name would be used to incriminate him. "But why else would an officer ask for it? And why else would the Nevada legislature require its disclosure only when circumstances 'reasonably indicate that the person has committed, is committing, or is about to commit a crime'?" Id., 124 S. Ct at 2464

What effect did 9/11 and terrorism have in the decision in Hiibel? A significant one, according to this author. Remember that the 9/11 terrorists were living right under America's nose, undetected. How many more are out there, and how do we find them, a fearful citizen might ask. Upholding the right of law enforcement to 'stop and identify' provides one more tool of detection in law enforcement's battle against crime and terrorism.

And because the majority could not explain how their decision could stand in the face of prior statements to the opposite in Terry and Berkemer, they simply chose to view them as 'not controlling'. One could easily argue that the Hiibel decision is the biggest example of departure from precedent in Fourth (and Fifth) Amendment cases since 9/11.

D. Illinois v. Caballes 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)

1. Holding - The United States Supreme Court, Justice Stevens, held that, where lawful traffic stop was not extended beyond time necessary to issue warning ticket and to conduct ordinary inquiries incident to such a stop, another officer's arrival at scene while stop was in progress and use of narcotics-detection dog to sniff around exterior of motorist's vehicle did not rise to level of cognizable infringement on motorist's Fourth Amendment rights, such as would have to be supported by some reasonable, articulable suspicion.

An Illinois State Trooper stopped Caballes for speeding on an interstate highway. While the trooper was in the process of writing a warning ticket, a member of the drug Interdiction Team arrived with a drug-sniffing dog. The dog alerted to the trunk of Caballes' vehicle. Officers searched the trunk and found marijuana. The entire stop lasted 10 minutes. Id., 125 S.Ct. at 836. the Court defined the issue narrowly: "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." Ibid.

The Court first acknowledged that a stop, lawful in its inception, can violate the Fourth amendment if it is unduly prolonged, or if the manner of execution otherwise unreasonably infringes on protected interests. The Court held, contrary to the Illinois Supreme Court, that a drug dog does not change the character of a traffic stop when it is otherwise executed in a lawful manner, unless the sniff itself infringed on a respondent's constitutionally protected interest in privacy. . Id., 125 S.Ct. at 837.

With regards to privacy, the Court bluntly noted that "official conduct that does not "compromise any legitimate interest in privacy' is not a search subject to the Fourth amendment." (citations omitted). Ibid.

The Court distinguished Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (pre-9/11), which had held that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search, by noting that such a device could also detect lawful activity, such as the taking of a bath or sauna. Id., 125 S.Ct. 838.

The dissent stated that the majority ignored the precedent that investigations into matters beyond the subject of a traffic stop offends the rule announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The dissent also argued that treating a dog sniff as sui generis, and not a search, was untenable. Caballes, supra., 125 S.Ct. at 839-843 (SOUTER, J., dissenting).

9/11 and other recent acts of terrorism have taught Americans that a favorite tool of terrorism is the small, hidden bomb. Just as there are dogs who are trained to sniff and detect marijuana, there are equally as many dogs who are trained to sniff and detect for bombs and ammunition. His well-known fact was certainly not beyond the knowledge of the Justices. And, the use of dogs to sniff cars for bombs would be an effective tool in preventing terrorist acts. So, although there was precedent for treating dog sniffs as non-searches, the Caballes decision, which flatly authorizes dog-sniffing for any terry stop whatsoever, can easily be argued as having been effected in some way by the events of 9/11.

Note: the Illinois Supreme Court, upon remand, is now going to decide whether a dog sniff violates the State Constitution.


E. Muehler v. Mena 125 S.Ct. 1465 161 L.Ed.2d 299 (2005)

1. Holding - (1) officers acted reasonably by detaining occupant in handcuffs for two to three hours while search was in progress, given fact that warrant sought weapons and evidence of gang membership, and
(2) officers needed no independent reasonable suspicion in order to question occupant about her immigration status.

During the execution of a search warrant of the premises for deadly weapons and evidence of gang membership, occupant Iris Mena was detained by a SWAT team and held in a converted garage adjacent to the house in handcuffs for 2-3 hours. Several other occupants were also handcuffed and detained during the search. An INS officer, who had accompanied the SWAT team, asked Mena questions about her immigration status. Mena was not suspected of any criminal activity which formed the basis of the warrant. Several weapons were recovered from the house pursuant to the warrant. Mena was not charged with any crime, and her status as a permanent resident was confirmed. Id. 125 S.Ct. at 1468-1469.

Mena then sued the officers for a violation of her civil rights under §1983. Mena alleged that she was detained for an unreasonable length of time and in an unreasonable manner. Ibid.The District Court found in her favor, and the Court of Appeals affirmed. Mena v. Simi Valley, 332 F.3d 1255 (C.A.9 2003). The Court of Appeals reasoned that Mena should have been released as soon as it became clear that she did not pose an immediate threat, and that questioning her about her immigration status was an independent Fourth Amendment violation. Ibid.

The Supreme Court reversed. It found that the officers had the right to detain Mena during the search, citing to Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). In Summers, the Court held that detentions are appropriate to prevent flight in the event incriminating evidence is seized, to facilitate the orderly completion of the search, and to minimize the risk of harm to the officers. Summers, id. at 702-703, 101 S.Ct. 2587.

The Court thus found that the detention of Mena during the duration of the entire search was reasonable under the Fourth Amendment. With regard to the use of handcuffs, i.e. force, the Court again found it reasonable. Acknowledging that such force was greater than was what was approved in Summers, the Court reasoned that handcuffing Mena for 2-3 hours was a 'minimal' additional intrusion, in comparison to the safety risk to officers when they performed the search for deadly weapons and wanted gang members. "This was no ordinary search", states the opinion. Mena, supra, 125 S.Ct. at 1470-1471.

In so far as the questioning of Mena regarding her immigration status, the Court of Appeals had found this to be an additional Fourth amendment violation, reasoning that such questioning required independent reasonable suspicion. The Supreme Court disagreed. First, the Court stated that the mere questioning did not constitute a seizure, citing to Florida v. Bostick 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (mere questioning passengers on a bus is not a seizure) and INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (questioning factory workers is not a seizure). The Court held that since the additional questioning did not prolong the length of detention, but rather occurred during the original detention, no additional suspicion or basis was required, citing to Illinois v. Caballes 543 U.S. ---, 125 S.Ct. 834, 160 L.Ed2d 842 (2005) (dog sniff during justified period of traffic stop not a Fourth Amendment violation).

Of course, the Mena decisions reliance on Bostick and Delgado for support that mere questioning is not a 'seizure' appears somewhat disingenuous. In both Bostick and Delgado, the Court had found that the persons questioned were not 'seized', so that the questioning of them was voluntary and acceptable. But in Mena, the person questioned had been handcuffed for 2-3 hours, and this fact alone seems to imply that Bostick and Delgado shouldn't be controlling. To that degree, Mena represents a post-9/11 departure from Fourth Amendment precedent.

The Mena decision definitely has 9/11 underpinnings. First, keep in mind that the terrorists in 9/11 were immigrants. Giving law enforcement the right to question anyone seized about their immigration status --so long as it doesn't prolong the length of detention-- is an effective law enforcement tool for rooting out possible terrorists. Second, allowing law enforcement to handcuff persons during the execution of the entire search process, rather than letting them go as soon as they 'pose no risk of immediate harm', will allow any additional questioning/interrogation to occur in an environment more conducive to obtaining answers. This newly authorized technique may be particularly helpful when executing warrants for acts of terrorism, as well as other crimes.

To the degree that Mena answers another Fourth Amendment issue in favor of law enforcement, it also fits the thesis of this paper, i.e. that individual rights have shrunken since 9/11.

F. Sosa v. Alvarez-Machain 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)

1. Holding - (1) whatever liability the United States allegedly had for alien's arrest by Mexican nationals, allegedly at instigation of the DEA, so that he could be transported across the border and lawfully arrested by federal officers, rested on events that occurred in Mexico, so as to fall within the "foreign country" exception to waiver of government's immunity under the FTCA;
(2) "foreign country" exception to waiver of government's immunity bars all claims against government based on any injury suffered in foreign country, regardless of where the tortious act or omission giving rise to that injury occurred; and
(3) single illegal detention, of less than one day, of Mexican national, custody of whom was then transferred to lawful authorities in the United States for prompt arraignment, violated no norm of customary international law so well defined as to support creation of cause of action that district court could hear under the ATS; abrogating Sami v. United States, 617 F.2d 755 (C.A.D.C.1979); Cominotto v. United States, 802 F.2d 1127 (C.A.9 1986); Couzado v. United States, 105 F.3d 1389 (C.A.11 1997); Martinez v. Lamagno, 1994 WL 159771, judgt. order reported at 23 F.3d 402 (C.A.4 1994); Leaf v. United States, 588 F.2d 733 (C.A.9 1978); and Donahue v. United States Dept. of Justice, 751 F.Supp. 45 (S.D.N.Y.1990).

Although not necessarily a Fourth Amendment case, Sosa's holding is definitely significant to the '9/11 effect', and so in the author's discretion, a discussion of the case has been included in this article. Further, the reader might think that abducting and arresting a person for extradition to the United States might have Fourth Amendment implications. According to the silence in Sosa, it doesn't.

In 1985, a DEA agent on assignment in Mexico was abducted and taken to a house, where he was tortured for 2 days and murdered. Alvarez-Machain ("Alvarez"), a Mexican physician, was believed to be present at the house and acted to prolong the agent's life in order to extend the interrogation and torture. Alvarez-Machain was then indicted by a grand jury for the torture and murder, and a U.S. warrant was issued for his arrest. The DEA asked the Mexican authorities for help in getting Alvarez to the United States, but the request went unfulfilled. The DEA then approved a plan to hire Mexican nationals to abduct Alvarez. The plan worked, and Sosa abducted Alvarez from his house, held him overnight in a motel, and then brought him by private plane to El Paso, Texas, where he was arrested by federal officers. Id., 124 S.Ct. at 2746, 159 L.Ed.2d 718.

Once in custody, Alvarez moved to dismiss the indictment on the basis of 'outrageous governmental conduct', and that the abduction violated the extradition treaty between the United States and Mexico. . The District Court agreed, the Court of Appeals affirmed, but the Supreme Court reversed, holding that the action did not affect federal jurisdiction. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1991). The case was tried, and Alvarez was acquitted.

Alvarez then brought suit for his abduction. He sought damages under the federal Tort Claims Act (FTCA) and Alien Tort Statute (ATS). The District Court dismissed the FTCA claim, but on the ATC claim granted summary judgment in favor of Alvarez, and awarded $25,000. The Court of Appeals, en banc, affirmed the ATS claim, holding that the actions violated the "law of nations" by relying on the "clear and universal recognized norm prohibiting arbitrary arrest and detention". 331 F.3d at 620. Additionally, the Court of Appeals reinstated the FTCA claim, holding that "the DEA had no authority to effect Alvarez's arrest and detention in Mexico". Id., at 608.

The Supreme Court reversed and dismissed all counts against Alvarez. First, it held that the FTCA provided sovereign immunity to the United States for any 'injury' that occurs outside of the United States. The Court interpreted that actual injury to have been the abduction in Mexico, rather than the DEA planning stage in the United States. Alvarez, 124 S.Ct. at 2747-2754.

Insofar as the Alien Tort Statute (ATS) claim, the Court held that this 1789 statute, allowing for jurisdiction "over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States" 28 U.S.C. §1350, only incorporated causes of actions which were in effect at the time of its adoption, or those rare instances where international norms have appropriately recognized new substantive rules.. Id. at 2754-2761. Suffice it say, kidnapping Alvarez for extradition was not one of those causes that the Court found actionable here. The Court stated that, although there is an international norm against arbitrary detention, "consensus is at a high level of generality". Id. at 2768. Thus, it has not yet reached the status of a binding customary norm, the rule being so broad, held the Court. Ibid.

Lastly, the Court held that the ATS claim failed for Alvarez simply because, even if arbitrary detention is a violation of international norms, his brief detention for one day was not the type of detention that exceeded any possible binding customary rule. Sosa, 124 S.Ct. at 2765-2769.

The 9/11 implications in Sosa are certainly obvious to today's readers. Since 9/11, the United States has gone to war with both Afghanistan and Iraq. The US is there, in part, to seek out members of the terrorist network known as 'Al Qaeda' and in part to capture the mastermind behind 9/11, Osama Bin Laden. A Supreme Court decision that would allow the U.S. to abduct foreigners, and bring them back to justice in the United states, is a healthy tool in the War on terror. If the United States were subject to tort liability, this tactic would be far more difficult to carry out. Thus, it is clear that the Justices couldn't overlook 9/11 when considering Sosa.

To the degree that foreign nationals can be abducted and extradited by the DEA to the United States without liability, the Sosa decision is material to the thesis of this paper, in spite of the lack of a Fourth Amendment analysis in it's holdings.

G. United States v. Patane 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004)

1. Holding - (1) failure to give suspect Miranda warnings does not require suppression of physical fruits of suspect's unwarned but voluntary statements;
(2) officers' failure to give Miranda warnings in conjunction with restraining-order arrest did not require suppression of weapon at firearms trial, since weapon was recovered based on defendant's voluntary statement that he possessed it.

In United States v. Patane, the Court was called upon to decide whether a non-compelled statement of a Defendant, taken in violation of Miranda, required exclusion of any physical evidence which was the fruits of the illegally obtained statements. In Patane, the Defendant was arrested for violating a temporary restraining order, which prohibited the Defendant from communicating with his ex-wife. The officers involved had also been tipped off that Patane was in possession of a firearm, even though he was prohibited from doing so as a previously convicted felon. So, when the police came to Patane's home and arrested him for violating the T.R.O., they also asked him about the location of the gun. Prior to questioning, the police had failed to mirandize Patane. Patane disclosed the location of the gun (in his bedroom). Patane was then charged with possesion of a firearm by a felon. The issue before the high court was whether the gun should be suppressed as a fruit of the Miranda violation.

The historical record established that, prior to 9/11, it was likely that a Miranda violation would have suppressed the Patane weapon. Although the Patane case was characterized by the Court as a matter of first impression, the Court's earlier decisions on similar issues were favorable to Patane. For example, the last Fifth Amendment case to come before the court prior to 9/11 was Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). In Dickerson, the Court held that Miranda was a constitutional rule that Congress could not supercede legislatively, and that a violation of Miranda was itself a violation of the Constitution.

Even in United States v. Hubbell, 530 U.S. 27 49-56, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) Justice Thomas suggested that the Self-Incrimination Clause might extend to bar the compelled production of any incriminating evidence, physical or otherwise. And the Patane decision acknowledged that the Miranda rule creates a generally irrebuttable presumption of coercion, in the absence of specific warnings.

In 1978, the Court had previously visited this issue and was evenly divided in Massachusetts v. White, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519.

Nevertheless, the Patane Court held that the Fifth Amendment does not require suppression of physical evidence which is the fruits of a 'voluntary' non-compelled statement of a defendant, even if taken in violation of Miranda.

The plurality opinion, written by Justice Thomas, starts out by defining the issue as one of 'extending' Miranda and the 'fruits of the poisonous tree' doctrine, rather than viewing the issue as whether the physical fruits fell within the doctrines. Once the issue was so characterized, the Court's reluctance to suppress the evidence was pre-determined.

In virtually all post-9/11 decisions, the Supreme Court has given broad deference to police conduct (or misconduct), and the Court has refused to interfere with most methods of apprehending suspects or solving crimes. Patane is no different.

As succinctly stated by the Supreme Court in Patane, "the Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn." Patane, (need cite, p. 2626).

Patane also supports this author's theory that the post 9/11 decisions reasonably fit the theme that the Court has broadened the powers of the police to detain, arrest and solve crimes, while giving protections to the trial rights of suspects. Patane re-affirms that the core protection of the Fifth amendment only deals with the admission of testimony against a suspect at trial. Thus, the conduct of the police on the street isn't the violation - rather, it is the admission of the statement at trial that forms the violation of Miranda. "And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule." (need cite, p.2626).

H. Groh v. Ramirez 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004)

1. Holding - (1) search warrant that utterly failed to describe the persons or things to be seized was invalid on its face, notwithstanding that requisite particularized description was provided in search warrant application;
(2) residential search that was conducted pursuant to this facially invalid warrant could not be regarded as "reasonable," though items to be seized were described in search warrant application, and though officers conducting search exercised restraint in limiting scope of search to that indicated in application; and
(3) Bureau of Alcohol, Tobacco and Firearms (BATF) agent who had prepared and executed warrant was not entitled to qualified immunity from liability.

In Groh, Ranch owners brought a Section 1983 Civil Rights Act claim against federal and county officials, alleging that their rights were violated when their homes were searched under a facially invalid search warrant. The warrant failed to list any particular items that were sought, such as the firearms, weapons, explosives and records listed in the application for the warrant. At issue was both the validity of the warrant, as well as whether the officials in question were immune from arrest.

In a 5-4 decision, the Court held that the warrant was invalid, and that the search was not reasonable under the "good faith exception". The Court further held that the leader of the search was not entitled to immunity, since he was responsible for reading the warrant and satisfying himself that the warrant was not defective in some way.

The Court noted the longstanding principle that at the core of the Fourth Amendment stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion (citations omitted)" Groh, id. 540 U.S. at 559, 124 S.Ct. 1284 . It reiterated the "'basic principle of Fourth amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable. (citations omitted)" Groh, id. 540 U.S. at 559, 124 S.Ct. 1284.

Law enforcement had sought the Court to find that a search conducted pursuant to a warrant lacking in particularity should be exempt from the presumption of unreasonableness if the goals served by particularity were otherwise satisfied. The facts in the case established that the application contained the items requested to be seized with particularity, and that the officers conducting the search had followed those requirements. Groh, id. 540 U.S. at 560.Further, the majority found that the officer was not entitled to qualified immunity, because the defect on the warrant, i.e. the particularity requirement, is specifically set forth in the text of the Constitution itself. Groh, 540 U.S. at 563.

The dissent, written by Justice Kennedy, agreed that the warrant was invalid, but felt that the officer should have been immune from suit. They characterized the officer's failures as a "mistake of fact". Groh 540 U.S. at 567 (J. Kennedy, dissenting).

Justices Thomas' dissenting opinion, with whom Justice Scalia joined in whole, sought to change Fourth Amendment analysis in the defective warrant area. He sought to change the law -- that defective warrants are presumptively unreasonable-- and advocated a new position, i.e. that even if there was a defective warrant, the Court would still review whether the search itself was reasonable. Groh, 540 U.S. at 573, 124 S.Ct. 1284 (J. Thomas, dissenting). Further, Justice Thomas would also have granted qualified immunity to the searching officer. Groh, id.

What effect did 9/11 have on the Groh decision? Although the outcome was against law enforcement (by a 5-4 decision), clearly the four dissenting Justices would have granted immunity even for a facially defective warrant, and two of them sought to abrogate precedent and allow another exception to the Fourth Amendment for illegal search warrants - one which would not suppress the evidence seized. Clearly, this position is contrary to long-standing Court precedent. Whether one cannot identify 'with particularity' whether 9/11 and the War on terror was of any impact, certainly the timing of the opinion (post 9/11) is not in doubt.

I. Kaupp v. Texas 538 U.S. 626, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003)

1. Holding - defendant was arrested within meaning of the Fourth Amendment, and his conduct at the time did not constitute consent sufficient to overcome probable cause requirement for arrest, and (2) defendant's confession to murder, which occurred after he was arrested, had to be suppressed, absent showing that confession was act of free will sufficient to purge primary taint of unlawful invasion.

In Kaupp, a 14-year-old-girl disappeared. Her 19-year-old half brother, who was seen in the presence of Defendant Robert Kaupp (then 17), who was questioned, passed a polygraph and was released. The half brother was also questioned, and he confessed to her murder, and implicated Kaupp. Detectives tried, but failed to obtain a warrant to question Kaupp a second time. Five police officers went to Kaupp's home anyways. Kaupp's father allowed entry. Kaupp, 538 U.S. at 627-628, 123 S.Ct. 1843.

After entry three detectives awoke Kaupp in his bed at three in the morning, told him 'we need to go and talk'. The defendant said "Okay". The police handcuffed Kaupp, and took him without his shoes and in his underwear first to the scene of the crime, and then to the station for questioning. Kaupp, 538 U.S. at 628, 123 S.Ct. 1843.The police acknowledged that they did not seek a conventional arrest warrant, as they did not believe that they had probable cause for Kaupp's arrest. Ibid. The State Court of Appeals found that no arrest had occurred, as Kaupp had consented to go with the officers.

In their Brief in Opposition to Writ of Certiorari, the State did not claim that probable cause existed, but merely that that an arrest had not occurred and that Kaupp's transport was consensual. The Supreme Court, in a per curiam decision (i.e. no arguments or briefs beyond the writ stage) found that "beyond cavit" an arrest had occurred, and that the confession later obtained was subject to suppression.

Taken individually, it appears that 9/11 had no effect whatsoever on this Fourth Amendment decision.

J. Kirk v. Louisiana 536 U.S. 635, 122 S.Ct. 2458, 153 l.Ed.2d 599 (2002)

1. Holding - The United States Supreme Court held in a per curiam opinion that, absent exigent circumstances, police officers' warrantless entry into defendant's apartment, and their arrest and search of defendant violated Fourth Amendment .

In Kirk, the Louisiana Court of Appeal had earlier held, without determining whether exigent circumstances existed, that the warrantless entry into the Defendant's home and subsequent arrest and search did not violate the fourth Amendment because there was probable cause to arrest the defendant. 00-0190 (La.App. 11/15/00) 773 So.2d 259. Without argument or briefing beyond the Petition for Writ of Certiorari (and in opposition thereto), the Supreme Court of the United States reversed, holding that the case was firmly controlled by Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Kirk, 536 U.S. at 638.

The Kirk Court then remanded the case back to Louisiana for consideration of whether exigent circumstances existed which would have justified the entry in the absence of a warrant.

Clearly 9/11 had no effect on this decision. However, since the case did not result in an outright reversal, but merely remanded the matter for a review of exigent circumstances, the decision of the Court did not result in a final, favorable judgment for the Defendant.

K. Maryland v. Pringle 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)

1. As it is an entirely reasonable inference from the facts here that any or all of the car's occupants had knowledge of, and exercised dominion and control over, the cocaine, a reasonable officer could conclude that there was probable cause to believe any of the persons in the vehicle committed the crime of possession of cocaine, either solely or jointly. Pringle's attempt to characterize this as a guilt-by-association case is unavailing. Ybarra v. Illinois, supra, and United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, distinguished. Pp. 799-802.

In Pringle, a police office stopped a vehicle for speeding at 3:16 a.m.; searched the car, seizing $763.00 in the glove compartment and cocaine from behind the back-seat armrest. He arrested all three occupants after they denied ownership of the drugs and money. Pringle was the front-seat passenger. U.S. v. Pringle, 540 U.S. at 367-368. The State court of Appeals held that, absent specific facts tending to show Pringle's knowledge and dominion or control over the drugs, that there was not probable cause to arrest Pringle. Id., 540 U.S. at 369.

In a unanimous opinion, the Supreme Court reversed the finding of no probable cause. It distinguished the case of Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed2d 238 (1979) where the Court had held that the mere propinquity to others suspected of criminal activity, without more, did not give rise to probable cause. The court noted that a car-passenger - unlike a tavern patron in Ybarra - will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or evidence of their wrongdoing.

What effect did 9/11 have in Pringle? It does fit the thesis, in that the Court was willing to accept the case and rule in favor of law enforcement. And arguably, the ruling signals that a car full of occupants would not be able to avoid an arrest and questioning, even if only one of them was found to be in possession of terrorist materials. As with any of the other decisions discussed herein, if the facts were tweaked to involve terrorists rather than drug dealers or immigrant smugglers, the result would be beneficial to the security of the United States.

L. Board Of Education of Independent School District No. 92 of Pottawatomie County v. Earls 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)

1. Holding - The Supreme Court, Justice Thomas, held that policy requiring all students who participated in competitive extracurricular activities to submit to drug testing was a reasonable means of furthering the school district's important interest in preventing and deterring drug use among its schoolchildren, and therefore did not violate Fourth Amendment.

In a 5-4 decision, the Earls decision extended suspicionless drug-testing searches to all students engaged in any nonathletic extracurricular junior high (middle) and high school activities under the 'special needs' exception to the warrant and probable-cause requirements of the Fourth Amendment.

Precedent for suspicionless student drug testing was first established in Vernonia School District 47 v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). There, the Court approved of random testing of student athletes where there the Court emphasized that drug use "increased the risk of sports-related injury", and evidence that Vernonia's athletes were the "leaders" of an aggressive local "drug culture" that had reached "epidemic proportions". Id., at 649, 115 S.Ct. 2386.

But in Earls, no such evidence was presented to support testing. In fact, the Tenth Circuit had ruled the drug testing policy unconstitutional for the very reason that the school had failed to identify a drug abuse problem, or that testing the defined group would likely redress the drug problem at issue. Board Of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 242 F.3d 1264, 1278 (2001). The school policy in Earls applied to band, pom-pom, choir, and athletics.

Applying a reasonableness balancing test, the majority held in favor of the school district. It noted that "[I]n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion", Earls, supra., 536 U.S. at 829, citing to Treasury Employees v. Von Raab, 489 U.S. 656 at 668, 109 S.Ct. 1384, 103 L.Ed.2d 639 (1989).Noting that a school has custodial and tutelary responsibility for children; that Fourth Amendment rights are different in public schools than elsewhere; that students have a reduced expectation of privacy; that the manner of collection and confidentiality of the results were both discreet; and that specific evidence of drug use in the School District was presented, the Court found the policy reasonable. Earls, 536 U.S. at 832-836, 122 S.Ct. 2559.

The dissent found that the majority had clearly departed from the limitations established by prior precedent. She also noted that the reasons offered for the school policy could allow for suspicionless drug-testing of all students. ("Those risks are present for all schoolchildren" Earls, 536 U.S. at 844 (J. Ginsburg, dissenting)(emphasis in original) Justice Ginsburg further wrote that:

"The particular testing program upheld today is not reasonable; it is capricious, even perverse: Petitioners' policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects." Earls, ibid.

How does 9/11 fit into the Earls decision? Earls represents another extension of suspicionless searches, albeit in the school setting. However, the Court's willingness to reduce the need for individualized suspicion when "the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling" (Earls, supra) does install a legal precedent if and when the Government chooses to use suspicionless searches in order to battle terrorism. Further, Earls supports the hypothesis that the Court has reduced the general protections that the Fourth Amendment offered to citizens prior to 9/11.

M. Thornton v. United States 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d. 905 (2004)

1. The United States Supreme Court, Chief Justice Rehnquist, held that the Fourth Amendment allows an officer to search vehicle's passenger compartment as a contemporaneous incident of arrest, even when officer does not make contact until the person arrested has already left the vehicle.

The facts in Thornton necessary for discussion herein are as follows: A police officer observed Thornton commit a traffic violation, namely that the tags were registered to a different vehicle. Before the officer could affect a stop, Thornton parked his car and exited. The officer approached Thornton while both were still near Thornton's vehicle. Thornton appeared nervous; he was rambling and licking his lips; he was sweating. (Thornton, 124 S.Ct. at 2129). During a patdown, drugs were found on Thornton, and he was arrested. Id. After being secured and placed into the squad car, a search of the passenger compartment incident to arrest revealed a gun under the driver's seat. The lower court and Court of Appeals held that the search was lawful.

The Supreme Court noted that precedent allowed searches of an arrestee and the area immediately surrounding him (i.e. within the suspect's 'immediate control') in his home as an exception to the warrant requirements of the Fourth Amendment, as 'incident to arrest'. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In New York v. Belton, 435 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Court authorized a search of the passenger compartment of an automobile when one of its occupants were lawfully arrested. The basis for justifying these searches in Chimel and Bolton was the need to remove any weapon the arrestee might use to resist arrest or to escape, and the need to prevent the concealment or destruction of evidence. Thornton, id., 124 S.Ct. at 2130.

Thornton argued that the need of a search without a warrant did not exist in his case. Thornton argued that, because he was outside of his vehicle before a stop was effected, and because he was secured in the squad car before the search, that the fear of resisting arrest, using a weapon, or concealing or destroying evidence did not exist. Therefore, Thornton argued, there was no constitutional basis for the search without first securing a warrant.

The Supreme Court in its opinion conceded that Thornton was not in a position to resist, escape, conceal or destroy evidence when his vehicle was searched without a warrant. However, the majority opinion decided that the search was nevertheless lawful. The majority opinion rejected the Defendant's (and the dissent's) proposal that a rule be fashioned that would determine the propriety of an automobile search based upon a fact-driven analysis. Rather, the Court determined that a bright-line rule authorizing the search of a vehicle incident to arrest whenever the arrestee has recently occupied the vehicle and was still in close proximity was more appropriate. Id at 2132.

The pro-law enforcement tone of Thornton is obvious. The Court in most other Fourth amendment cases consistently states that a decision should be based upon the 'totality of circumstances', thus forcing a fact-driven analysis. (See, e.g. NEED CASES) And the Court has consistently criticized lower courts and rejected bright-line rules in Fourth Amendment cases (See e.g. NEED CASES). Of course, the great majority of those criticisms have occurred when bright line rules have favored the citizen and disfavored law enforcement.

But, the Thornton majority had no problem enforcing a bright-line, Fourth Amendment rule, in order to assist law enforcement:

"The need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within the reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated." Thornton at S.Ct. 2132

What affect did 9/11 have on Thornton? Again, an open question involving the search of an arrestee's person and things was decided in favor of law-enforcement. Further, where the Court has consistently rejected bright line rules in Fourth amendment cases, in favor of 'totality of circumstances' analysis, it did exactly the opposite here, in order to err in favor of law enforcement. And even the concurring Justices seemed to be more critical of the decision, than supportive. Justice O'Connor wrote separately to express her "dissatisfaction with the state of the law in this area." Thornton (J. O'Connor concurring) 124 S.Ct. 2133. Joining Justice Scalia, (also concurring). Justice O'Connor wrote that "lower courts seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception.." (Thornton 124 S.Ct. 2133)

Justice Scalia also concurred, deferring to law enforcement, but writing that:

"As one judge has put it: [I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find.' (Citation omitted) I agree entirely with that assessment." Thornton (J. Scalia concurring) id at 2135

To a significant degree, the Thornton opinion emasculated the 'immediate control' limitation that Chimel and Belton created for approving searches 'incident to arrest'.


N. United States v. Arvizu 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)

1. Holding - The Supreme Court, Chief Justice Rehnquist, held that: (1) the Court of Appeals' approach in determining the existence of reasonable suspicion for the investigatory stop of defendant's vehicle, which evaluated and rejected many of the factors considered by the district court in isolation from each other, did not properly take into account the "totality of the circumstances," and (2) the "totality of the circumstances" test allows officers to draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available to them that might elude an untrained persons. Therefore, giving due weight to the factual inferences drawn by the border patrol agent, the agent had reasonable suspicion to believe that defendant was engaged in illegal activity, and so the stop satisfied the Fourth Amendment.

The facts in Arvizu can be summarized as follows:

A minivan was traveling in southeastern Arizona, not to far from its border with Mexico. The van was traveling on an unpatrolled, lightly traveled highway. The border patrol had placed sensors on this roadway, and at 2:15 p.m. the minivan triggered the sensor(s). Given the road traveled, and the fact that the time involved was during a border patrol shift change known to smugglers, a patrol agent went to investigate. As the minivan approached the agent's stopped car, it slowed from 50mph to 25 mph. The driver stiffened, and seemed to deliberately ignore the agent's presence. In the minivan were a female passenger, and 3 young children in the back seats. 2 of the children's knees seemed to be high up, signifying that their feet were on top of something on the cargo floor. The agent followed. Shortly thereafter, the children turned and began to wave in an apparently instructed manner. The waving continued for four to five minutes. The van signaled, and abruptly turned onto another roadway, which happened to be the last road to turn on in order to avoid a checkpoint. The agent then made a stop of the minivan. The van contained approximately 100 pounds of marijuana. The trial court found the stop reasonable, but the Court of Appeals did not, finding the actions unusual, but not illegal.

The Supreme Court first noted that a stop is authorized under the Fourth amendment if the officer's action is supported by reasonable suspicion that criminal activity 'may be afoot'. Arvizu at 273, citing to U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

The unanimous opinion noted that the standard of review in search and seizure cases was de novo, rather than whether the lower court's decisions were 'an abuse of discretion'. Arvizu, at 275. This standard of review, said the Court, was necessary to allow for uniformity of precedent based upon the same set of facts. Applying this standard, the Supreme Court was then allowed to draw it's own conclusions form the facts, and was free to issue a contrary opinion without deferring to the lower courts.

Then in a seemingly twist of logic, the Court specifically held that, in cases such as these, a reviewing court should give 'due weight' to factual inferences drawn by resident judges and local law enforcement officers. Arvizu at 273-274, citing to Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

As Justice Scalia commented in his concurring opinion:

"... [If] de novo review is the standard ... we have a peculiar sort of de novo review [here]." Arvizu at 278 (J. Scalia, concurring)

The Court then acknowledged that certain unusual conduct may be cause for stopping someone in one part of the country, but not be cause to stop in another part of the country:

"We think it quite reasonable that a driver's slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy san Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona).

Thus, after pressing a standard of de novo review (in order to give uniformity based on identical facts), the Court stated that "to the extent that a totality of circumstances approach may render appellate review less circumscribed by precedent than otherwise, it is the nature of the totality rule." Arvizu at 276.

What effect did 9/11 have on this decision? Again, Arvizu follows this article's hypothesis that the open question was answered by the Court in favor of the Government's right to seize persons. Like Terry v. Ohio, 392 U.S. 1 (1968), the stop here was based on unusual but not facially illegal conduct. But unlike Terry, the opinion here clearly removes the deference given on review to a lower court's decisions (i.e. abuse of discretion), and the opinion creates a new, substandard test which could be called the 'totality of circumstances as seen by an experienced officer in light of the locality where the conduct occurred' test; giving substantial deference to that local law enforcement's 'experiences and training' ('that might well elude an untrained person' Arvizu at 273-274).

Did Arvizu depart from pre-9/11 decisions? The answer is both yes, and no. To the extent that the Court applied the totality of circumstances test, there was no departure. However, one could easily view this case as a departure from other border patrol cases, including 'roving roadblocks', wherein the Court found that such practices were unconstitutional because it gave field officers too much discretion in deciding whom to stop and search. "The officer's conduct in (the Prouse case) was unconstitutional primarily on account of his exercise of 'standardless and unconstrained discretion.'" City of Indianapolis v. Edmond, 531 U.S. 32, 39 (2000)(insert added); see also Ortiz, 422 U.S. at 895-896 (invalidating a roadblock stating "moreover we are not persuaded that the checkpoint limits to any meaningful extent the officers' discretion in deciding which cars to search".); I.N.S. v. Delgado, 466 U.S. 210, 222 (1984) (explaining that the checkpoints in Martinez-Fuerte were constitutional because, amongst other things, " they were public and regularized law enforcement activities vesting limited discretion in officers in the field.")(Emphasis added).

O. United States v. Banks 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003)

1. Holding - The United States Supreme Court, Justice Souter, held that: (1) interval of 15 to 20 seconds from officers' knock and announcement of search warrant until forced entry was reasonable, given exigency of possible destruction of evidence, and (2) entry did not violate "refused admittance" requirement of federal statute governing breaking of doors or windows in execution of search warrants.

In Banks, the Supreme Court again visited the power of law enforcement to apprehend criminals and solve crimes, by revisiting and reviewing the 'knock and announce' rules. The question presented was whether a 15-20 second wait, after knocking and announcing their presence, was sufficient to allow the police to force entry into a home in order to execute a search warrant for cocaine. The Court held that such a time frame was reasonable.

Now, it goes without saying in constitutional jurisprudence that the Supreme Court has consistently held that the primary crucible to all Fourth Amendment analyses is 'reasonableness'. See, e.g. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) ([W]e have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry") (more cites available in Banks opinion, if necessary)

Yet, a pure 'reasonableness' inquiry by itself allows judicial decisions to be affected by the socio-political events existing at the time that a particular case is reviewed by a court. See, e.g. Korematsu, (cite) where it was reasonable to relocate American citizens of Japanese descent and place them into internment camps in the face of Pearl Harbor and war with Japan.

The knock and announce rule has been part and parcel to the Fourth Amendment since its inception. See Wilson v. Arkansas, 514 U.S. 927, 935-936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (quoting Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (k.B. 1603). Nevertheless, the Banks Court infers that even the knock and announce rule is not necessarily a constitutional rule or prerequisite, offering that:

"The Fourth Amendment says nothing about the formalities in exercising a warrant's authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right "to be secure ... against unreasonable search and seizures." (need cite, Banks at p. 35).

And, where in Richards v. Wisconsin, the Court implied that the knock-and-announce rule was at least a significant factor in a Fourth Amendment analysis, the banks court even further diminishes the rule by stating that the more true analysis goes to the exigency of the circumstances alone, coupled with the seriousness of the offense. "[I]t is enough that the officers had a reasonable suspicion of exigent circumstances'."

Wherein the knock-and-announce rule had it's origins in giving the citizen the opportunity to open the door, thereby avoiding unnecessary damage to the home, the Banks Court rejected entirely the notion that the police should give a reasonable time to the citizen to open the door based upon the size of the home or the time of day. "[T]he crucial fact in examining [the police] actions is not time to reach the door but the particular exigency claimed." (Banks, p. 40) And in Banks, the exigency involved was the opportunity to destroy the cocaine.

This exigency, the opportunity to destroy drugs, is certainly appealing and logical. But in a historical perspective, the length of time to destroy drugs is really no different then it would have been in earlier crimes de jour, such as theft of papers (thrown into fireplaces), or booking slips (written on water-soluble paper), etc. yet those crimes which certainly occurred during the first two hundred years of American jurisprudence did not seem to diminish the knock-and-announce rule's validity. Perhaps it was the need to catch terrorists who can erase computer-based hijacking plans that turned the tide in these modern cases.

P. United States v. Drayton 536 U.S. 194, 122 S.Ct. 2105, 153 l.Ed.2d 242 (2002)

1. Holding - The Supreme Court, Justice Kennedy, held that: (1) plainclothes police officers did not "seize" passengers on bus when, as part of routine drug and weapons interdiction effort, they boarded bus at rest stop and began asking passengers questions; and (2) passengers' consent to search was voluntary.

In this case, the Supreme Court addressed the issue of whether an unlawful seizure occurred when officers, performing a drug interdiction, boarded a commercial bus and began questioning passengers and performing searches of their persons and things. The Eleventh Circuit Court of Appeals had held that, in the absence of a warning to passengers by the police that passengers had a right not to cooperate, that the persons were unlawfully seized. Using a 'totality of circumstances' analysis, the majority of the Court held that no such warning was required, and that no seizure had in fact taken place.

The factual circumstances in Drayton , however, were clearly viewed by the majority and the dissent in different lights.

In Drayton, the bus arrived at a scheduled stop, where every passenger was required to deboard for a brief cleaning and refueling of the bus. Drayton, 536 U.S. at 210.Upon reboarding, the driver took everyone's tickets and held onto them. Once the bus was reboarded, the driver allowed 3 plainclothes officers to enter, and the driver then exited the bus. One officer sat in the drivers seat, near the forward exit, while 2 officers walked to the rear. The one rear officer began questioning, while the second rear officer backed him up. As they approached, Drayton was seated in the one of two seats nearest the window. Drayton, 536 US at 197-198. The aisle occupied by the questioning officer was only 15 inches wide, the seats were 18 inches wide, and the face of the nearest officer was only 12-18 inches away from the nearest passenger being addressed. Drayton 536 U.S. at 211.

The majority held that the proper test was "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Drayton 536 U.S. at 202. If so, the majority stated, then no seizure had taken place, and the defendant's agreements to be searched were therefore voluntary.

The Court relied in great part on a prior decision of Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). In Bostick, police officers had boarded a bus, and after informing the passengers of their right not to cooperate, conducted a drug interdiction. Bostick, 501 U.S. ____. But, the Bostick decision had not ruled upon whether a seizure of that bus had in fact occurred; rather Bostick simply reversed a lower court's ruling that general questioning of bus passengers was a per se violation of the Fourth Amendment.

So, what effect did 9/11 have in the Drayton case? First, it is interesting to note that the dissent starts with the statement:

"Anyone who travels by air today submits to searches of the person and luggage as a condition of boarding the aircraft. It is universally accepted that such intrusions are necessary to hedge against risks that, nowadays, even small children understand. The commonplace precautions of air travel have not, thus far, been justified for ground transportation, however, and no such conditions have been placed on passengers getting on trains and buses." Drayton 536 U.S. at 208 (J. Souter, dissenting).

So, 9/11 and the fear of terrorism was clearly an element of discussion in the case. And, with that in mind, it is clear that the Bostick majority was foreshadowing its approval of the next step in the war on Terrorism: passenger searches at bus and train terminals.

In a more subtle way, the '9/11 effect' is seen in Drayton by its moving the search and seizure pendulum one more step to the right: Drayton fits the 9/11 trend towards approval of more pro-active governmental interference with a citizens' right to be left alone, in the absence of cause.

Where it's prior decision in Bostick simply rejected a per-se rule prohibiting questioning of bus passengers after they are informed of their right not to cooperate, Bostick comes straight out and holds that passengers under these cramped conditions must assert their own rights; that police need not inform them of the right not to cooperate, and that, in the majority's view, the citizen's general willingness to help police solve crimes is presumed to make this encounter voluntary even under the facts of record.

Q. United States v. Flores-Montano 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004)

1. Holding - The Supreme Court, Chief Justice Rehnquist, held that:
(1) defendant did not have a privacy interest in his vehicle's fuel tank, and
(2) disassembly of a gas tank as part of a border search does not require reasonable suspicion.

In Flores-Montano, the Court was asked whether the Fourth Amendment required reasonable suspicion in order to remove, disassemble, and reassemble an automobile's gas tank during a border inspection. The Court held that such a search did not require individualized, or reasonable suspicion. Although the ruling itself is not necessarily a surprise in any respect, it did represent a post-9/11 shift from what the lower appellate courts had presumed in pre-9/11 opinions.

Prior Supreme Court border inspection cases, issued pre-9/11, had stated that "routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant." United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d. 381 (1985). The Montoya de Hernandez Court further stated that "because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches." Id., at 541 n. 4, 105 S.Ct. 3304.

In the case before review by the Court, the Court of Appeals assumed that Montoya de Hernandez supported a need for reasonable suspicion when removing and disassembling a gas tank during a 'non-routine' search. Based upon the facts of the case, where reasonable suspicion did not exist, the Court of Appeals had suppressed the evidence.

The Supreme Court unanimously reversed. What effect, if any, did 9/11 have on the Flores-Montano decision? First, it clearly fits the hypothesis that the Court has, since 9/11, consistently supported greater search and seizure power by the government, and required less of a basis to so do.

Second, the issue of terrorism and the right to protect our borders was certainly brought to issue in the attacks that occurred on Sept. 11, 2001. All of the terrorist in 9/11 were foreigners. Some of them were in the U.S. illegally, or had been mistakenly allowed to enter the US without a hitch, even though they were listed by the Government as potential terrorists. And the Flores-Montano opinion boldly stated:

"The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we haved stated 'searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable by virtue of the fact that they occur at the border'". (Citations Omitted) U.S. v. Flores-Montano, 541 US 149, 152-3, 124 S.Ct. 1582

"It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity." Flores-Montano, id., at 153

Second, the Court in Flores-Montano goes beyond simply deciding the narrow issue of whether a 1 hour delay in disassembling a gas tank requires any suspicion at all. Whereas the Supreme Court has time and again denounced bright-line rules in Fourth Amendment analyses when such a ruling has prohibited searches or seizures, (See, eg. Illinois v. Lidster, MORE) the Flores-Montano Court does make clear, bright-line statements in support of the government's right to search:

"Complex balancing tests to determine what is a 'routine' search of a vehicle, as opposed to a more 'intrusive' search of a person, have no place in border searches of vehicles." (U.S. v. Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582)

"We conclude that the Government's authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle's fuel tank." Flores-Montano, id, at 155.

R. United States v. Knights 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)

1. Holding - The Supreme Court, Chief Justice Rehnquist held that warrantless search of probationer's apartment, supported by reasonable suspicion and authorized by a condition of his probation, was reasonable within the meaning of the Fourth Amendment .

In U.S. v. Knights, the Supreme Court held, in an opinion written by Chief justice Rehnquist, that a warrantless search of a probationer's apartment, based upon reasonable suspicion (not probable cause) and authorized as a condition of probation, was not a violation of the Fourth Amendment.

In Knights, the Defendant was placed on probation for a drug offense. The conditions of probation included that Knights submit to a search at any time, with or without a warrant or any type of individualized suspicion. (p.114) Investigation of a recent act of arson 3 days after Knights had been placed on probation led the police to Knights. After observing a Molotov cocktail, a gasoline can, and other items inside knights' truck, the police searched Knights' apartment, believing that a warrant was unnecessary due to Knights' conditions of probation. Both the Federal District Court, and the Ninth Circuit Court of Appeals, suppressed the evidence found during the search of Knights' apartment. 219 F.3d 1138 (2000). Each found that the search was not tailored to Knights' 'probationary purposes', but rather was intended for criminal 'investigatory purposes'.

The Supreme Court heard argument and decided the case within 8 weeks following 9/11. The unanimous Court framed the issue as "whether the Fourth Amendment limits searches pursuant to [a] probation condition to those with a 'probationary' purpose. (need cite, p.116). In 1987, the Court had upheld warrantless searches of probationers' homes in Wisconsin which were based upon reasonable grounds under the 'special needs' exception to the Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 368, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) There, the Court noted that there was a 'special need' for supervision to assure that probation restrictions were in fact observed. Id., at 875, 107 S.Ct. 3164.

So, what effect did 9/11 have on this unanimous opinion? Although one could easily argue that the outcome would not have changed even if this case was heard prior to 9/11, the language employed and the degree to which the Justices deferred to law enforcement/governmental interests may have. For example, since the basis for the search itself was premised upon a condition of probation which allowed the government to search a probationer's house for no cause at all, the justices could have easily avoided the ultimate issue by finding that the condition itself, i.e. causeless searches, was unconstitutionally defective.

Further, the language employed went well beyond the narrow issues in the case. The case itself was decided on the need to ensure that a probationer was not violating conditions of probation, including committing new crimes while on probation. Yet, the Court offered the following comments that went well beyond that 'special need' pointing out:

"[The governments] interests in apprehending violators of the law, thereby protecting potential victims of the criminal law may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen." (need cite p. 119)

"The very assumption of the institution of probation is that the probationer is '[more likely than the ordinary citizen to violate the law'. (need cite p.119)

Lastly, the Justices left open entirely the question of whether searches of probationers and their homes requires any degree of suspicion, stating "we need not address the constitutionality of a suspicionless search..." (need cite p. 120).

S. Illinois v. Lidster

1. Holding - Roadblock designed to seize persons, in order to question and possibly find witness(es) to hit-and-run one week prior at same location and same timeframe, did not violate Fourth Amendment.

The police set up an 'informational checkpoint' after a fatal hit-and-run occurred, one week later at the same time and location. There, they stopped every motorist, and briefly questioned them about whether they had any information about the hit-and-run. Robert Lidster was one of those who were stopped. Lidster was under the influence of alcohol, and was arrested and charged with DUI.

Lidster challenged the validity of the roadblock. On appeal, the Illinois Supreme Court found that the roadblock violated the U.S. Constitution, relying on Indianapolis v. Edmond, 531 U.S. 32 (2000). 202 Ill.2d 1, 779 N.E.2d 855 (2002). The Edmond decision had found that roadblocks set up to find 'ordinary evidence of criminal wrongdoing' (there it was a drug interdiction roadblock) was a violation of the Fourth Amendment. Edmond, id. at 41.

The Supreme Court of the United States found that the roadblock in question did not violate the Constitution. The Court in Lidster found Edmond distinguishable, and not controlling. The type of roadblock in Lidster, i.e. information-seeking checkpoints, was different than an Edmond-type stop "justified only by the ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime", said Lidster. Id at ____. (emphasis in original).

Using a reasonableness-balancing test, the Court found in favor of law enforcement. "The stops are likely brief. The police are not likely to ask questions designed to elicit self-incriminating statements. And citizens will react positively when police simply ask for their help as 'responsible citizens' to 'give whatever information they may have to aid in law enforcement'." Lidster, id at ___, citing to Miranda v. Arizona, 384 U.S. 436, 477-78 (1966).

The Court in Lidster compares this type of suspicionless roadblock as nothing more than another form of 'crowd control or 'public safety' event.

What is troublesome in Lidster is the fact that the Court acknowledges that the stop was a suspicionless seizure, but then upholds the right to question Lidster by referring to Florida v. Royer, 460 U.S. 491, 497 (1983), a case where the Court held that brief law enforcement questioning was unconstitutional based upon the very fact that a suspicionless seizure had in fact occurred. And the Court's reference to Michigan v. Sitz is also somewhat disingenuous. Sitz approved of DUI roadblocks because there was statistical evidence that such a roadblock was in fact effective. In Lidster, there was no evidence that the roadblock was, or would be effective. In fact, the Lidster roadblock failed to gain any evidence or leads in solving the hit-and-run.

Lidster also relied on United States v. Martinez-Fuerte, 428 U.S. 543 (1976) for support. The problem there is that Martinez-Fuerte involved a border checkpoint, where the Court has held that "routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant." United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d. 381 (1985).

The Illinois Supreme Court had expressed a fear that, if these types of roadblocks were given constitutional imprimatur, then there would be no legal limit to their proliferation. Cf. 202 Ill.2d, at 9-10, 779 N.E.2d, at 859-860. The U.S. Supreme Court was substantially less concerned, stating that an Edmond-type rule to prevent an unreasonable proliferation of police checkpoints was unnecessary, because limited police resources and community hostility to related traffic tie-ups would likely inhibit any such proliferation. Lidster, supra at ____) In that context, it appears that the Supreme Court is deferring to the citizens to create the line where suspicionless-seizures/informational-checkpoints should stop, rather than the courts per se.

The approval of such suspicionless seizures (in concept) by the Court in Lidster was unanimous, with even Justice Stevens joining parts I and II of the decision. Lidster, _________ (STEVENS, J., concurring in part and dissenting in part). However, Justice Stevens had previously the belief in Sitz that suspicionless checkpoints, other than at the border, were unconstitutional stating:

"The Court overvalues the law enforcement interest in using sobriety checkpoints, undervalues the citizen's interest in freedom from random, announced investigatory seizures, and mistakenly assumes that there is "virtually no difference" between a routine stop at a permanent, fixed checkpoint and a surprise stop at a sobriety checkpoint. I believe this case is controlled by our several precedents condemning suspicionless random stops of motorists for investigatory purposes. Delaware v. Prouse, 440 U.S. 648 (1979); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Ortiz, 422 U.S. 891 (1975); Almeida-Sanchez v. United States, 413 U.S. 266 (1973); cf. Carroll v. United States, 267 U.S. 132, 153-154 (1925)." Sitz, supra., 496 U.S. 444, 463 (STEVENS, J., dissenting).

The police and the Court stated that this roadblock was only set-up to find witnesses, and was thus 'informational' in nature. But that belies one fact - it was at least as equally probable that the suspect might be found in the roadblock as it was thatthey would find a so-called witness. So, to describe the checkpoint as purely 'informational' is an assumption without merit.

The approval of suspicionless checkpoints in Lidster, however 'reasonable', should be compared to the language employed some 79 years earlier by the Court:

"Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise." Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285 (1925).

The decision in Lidster is meaningful in a post 9/11 sense, because the use of roadblocks to solve crimes, or acts of terrorism, would be a valuable tool for law-enforcement. Mass, suspicionless seizures, even brief ones for simple information-gathering, is can be an effective means of solving crimes. And the Court's language in Lidster is harsh when it comes to protecting individual freedoms:

"The Fourth amendment does not treat a motorist's car as his castle."

"[T]he context here...is one in which, by definition, the concept of individualized suspicion has little role to play."

Note: It should be noted, for the sake of fairness, that the author of this article was the Attorney for Respondent Robert Lidster before the Supreme Court of the United States.

V. CONCLUSION

Benjamin Franklin once said, "Those willing to give up a little liberty for a little security deserve neither security nor liberty."

It has been 4 ½ years since 9/11, and the beginning of the 'War on Terror'. Since then, the Supreme Court has issued at least 19 opinions reviewing the lawfulness of governmental actions involving the rights of individuals in the context of pre-arrest interactions. These opinions cover such issues as the right to confront individuals, the right to seize individuals, the right to question individuals, the right to detain individuals, the right to abduct individuals, the right to use deadly force against individuals, the right to arrest individuals, and the right to search individuals and their property - all neatly placed by this author into the category of "law-enforcement tools for detecting and solving crimes".

Did 9/11 have an effect on the decisions of the United States Supreme Court on these subjects? When deciding these cases, did the Justices, individually or in total, consider what effect their rulings might have on catching terrorists or preventing future acts terrorism? Would abducting a foreign national and bringing him back to the United States for prosecution be desirable in this post 9/11 world? Would information-seeking roadblocks be helpful in finding witnesses to or suspects in terrorism? Would boarding buses (or planes) and questioning passengers help in the War on Terrorism? Should suspects be required to reveal their true identities to the police or face arrest? Should the police be able to use dog-sniffing as a tool to find possible explosives or bombs, even if the police have no basis for suspicion?

In 17 of the 19 decisions discussed herein, the Court ruled in favor of law-enforcement's actions. In many, the Court distinguished previous decisions where precedent was leaning in favor of the individual. In others, the Court even abrogated lower court precedent(s) that were favorable to individual rights.

Often, the Court justified it's rulings on the grounds that the inconvenience to the citizen was minimal compared to the needs of law enforcement. Other opinions suggested that law enforcement knew best what techniques were needed to effectuate their goals, and the Court therein deferred.

Whether the reader agrees or disagrees with the Supreme Court's decisions or their deliberative processes, the Court has definitely expanded police powers since 9/11. And consequently, an individual's right to free passage, to be 'left alone' (See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986)), has diminished.

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