4th Amendment—Exception Becomes the Rule

In Monday’s decision in the 4th Amendment case, Samson v. California (04-9728), the similarly‑minded alliance that now constitutes the majority of the United States Supreme Court —Justices Thomas, Roberts, Scalia, Alito, Ginsburg, and surprisingly, Kennedy—issued a questionably reasoned opinion that reads more like a policy paper.^[1]

In its opinion, the majority eliminated any hint of a reasonableness standard involved in permitting police to search individuals who are on parole. There are two ways to read this, both with the same result: Either parole entails an unconditional loss of privacy rights or the condition of being on parole places a person under a huge umbrella exception that justifies the violation of personal rights regardless of any other consideration.

The dissent in this case, written by Justice Stevens with Justices Souter and Breyer joining, argues that this decision “pays lipservice to the end while withdrawing the means.”^[2] The dissenters point to the use of “faulty syllogism with circular reasoning” and false assumptions.^[3] The Justices conclude that “[w]hat the Court sanctions today is an unprecedented curtailment of liberty,” apparently argued to a standard that would not pass muster in a court of appeals, and that “runs roughshod over our precedent.”^[4]

The majority begins with an assumption that is naked in its pro-law enforcement bias: That parolees have “fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is.”^[5] Justice Steven asserts that this assumption has no state or constitutional basis. Parolees and probationers are more “akin” in that both involve a noncustodial setting subject to restrictions that are designed to “facilitate supervision and guard against antisocial behavior” while promoting reintegration into society.^[6] In essence, parolees are very much unlike prisoners who are subject to restrictions designed to maintain order and serve “institutional needs.”^[7]

Nor, Justice Stevens asserts, is the unfettered discretion permitted to police officers with regard to parolees justified by any “special need” exception. He notes that the case relied on by the majority, Hudson v. Palmer, is “understood as a “special needs” case—not as standing for the blanket proposition that prisoners have no Fourth Amendment rights.”^[8] According to the majority, however, not only do prisoners have no expectation of privacy, but neither do former prisoners. Apparently the condition of being on parole, regardless of the nature of the conviction or sentence, is a special need exception permitting the broadest possible waiver of privacy rights ipso facto.

Justice Stevens et al note that “[threaded] through the Court’s reasoning is the suggestion that the deprivation of Fourth Amendment rights is part and parcel of any convict’s punishment.”^[9] And yet nowhere “have we ever sanctioned the use of any search as a punitive measure.”^[10]

The proper analysis that permits a suspicionless police search of a non‑incarcerated person is where the case in which the balance between the state’s interest and the individual’s expectation of privacy dictates such a result. This analysis still holds to permit random searches of parolees by parole officers, based on the state’s interest in supervision, reintegration, and avoidance of rearrest. However, when applied to searches by police officers, the majority rests its justification on the state’s “overwhelming” interest in decreasing recidivism.^[11] Unfortunately, the paradoxical result of suspicionless searches is not prevention of rearrest, but more arrests.

Finally, the dissent rightfully objects that the Court’s misuse of the Fourth Amendment creates the “very evil the Fourth Amendment was intended to stamp out” and that jurisprudence in this area “does not permit the conclusion, reached by the Court here for the first time, that a search supported by neither individualized suspicion nor “special needs” is nonetheless ‘reasonable.’”^[12] And yet, conclude it did.

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[1] Samson v. California, 547 U.S. ____ (J. Stevens dissenting) (2006).
[2] Samson at dissent 10.
[3] Samson at dissent 2.
[4] Samson at dissent 2.
[5] Samson at 5.
[6] Samson at dissent 6.
[7] Samson at dissent 7.
[8] Samson at ftnt. 3. See also Hudson v. Palmer, 468 U.S. 517 (1984).
[9] Samson at dissent 8.
[10] Samson at dissent 8.
[11] Samson at 8.
[12] Samson at dissent 2.