Sunday, January 19, 2014

Ginsburg (and sometimes Scalia) on Search and Seizure

By Joshua Greenfield
Joshua Greenfield is a third year student at Albany Law. He graduated from Syracuse University in 2011 with a degree in Art History. Josh has interned at CBS's legal division and the New York Public Employment Relations Board. He is currently a contributing member of the Center for Art Law website writing on various issues in the field of art law.
This essay was prepared for Prof. Bonventre’s Judicial Process Seminar, Fall 2013.

Looking back on the last ten divided Supreme Court decisions in which Justice Ginsburg voted on the issue of search and seizure under the Fourth Amendment, it is evident that Ginsburg is, above all else, a proponent of greater individual and privacy rights.[1] Justice Ginsburg’s decisions are not guided by a need to ensure that law enforcement complies with procedure. Rather, it is the level of intrusion the government places on an individual that determines how she votes.

Her “stream of tendency,”[2] the underlying principle guiding her decisions, is based on greater individual freedom and personal autonomy. In every single divided case involving searches and seizures in the last ten years or so, Ginsburg has voted for greater individual protections from governmental intrusion rather than allowing law enforcement to exercise discretion.

In all of these decisions, Ginsburg weighed the government’s interest against the individual’s interest and sided with the individual. If a case came down to whether to overlook the government’s failure to follow what many would consider a formality in procedure or to let an alleged criminal go free, Ginsburg would err on the side of freeing the individual because of her belief that people should be afforded greater individual and privacy rights. Even when there is no culpable police conduct, Ginsburg sides with the accused.[3]

Interestingly enough, although their decisions are usually on opposite ends of the spectrum in other contexts, Ginsburg and Scalia appear to vote the same way on many issues involving searches and seizures. In those cases, both vote for a more expansive individual right to privacy.

For example, in Florida v. Jardines, Ginsburg joined the 5-4 majority, written by Scalia, which held that a dog sniff that took place at the defendant’s front porch constituted a search requiring probable cause for Fourth Amendment purposes.[4] In that case, police received an unverified tip that Jardines was growing marijuana at her house.[5] Two detectives and a narcotics dog went onto the front porch of her home and smelled marijuana.[6] One of the detectives applied for a warrant, conducted a search inside Jardines’ house, and found marijuana.[7]

At trial, Jardines moved to suppress the evidence as “fruit of the poisonous tree.”[8] The issue before the Supreme Court was whether the dog sniff that occurred outside on Jardines’ porch was a “search” requiring probable cause under the Fourth Amendment.[9] The Court held that, in this case, the dog sniff was a search requiring probable cause because it occurred on the defendant’s front porch.[10]

The Court reasoned that a person’s porch is a private area that members of the public are not normally welcome to enter without invitation; in other words, one’s porch is part of their private home.[11] Because the porch is a private residential area, law enforcement could not enter it without permission or a warrant supported by probable cause.[12]

The detectives in Jardines conducted the search based purely on an unverified tip.[13] Underlying Scalia’s opinion, which Ginsburg joined, is Ginsburg’s fundamental belief that people should be left alone unless there is a good reason for the government’s intrusion (probable cause of criminal activity). The Jardines opinion exemplifies Ginsburg’s belief that individual privacy rights should prevail over the government’s interest when the justification for the government’s intrusion is not strong enough, i.e., lack of probable cause.

Individual autonomy and expansive individual privacy rights pervade Ginsburg’s decisions in other areas of the law as well, i.e., the right to choose.[14] This view produces decisions that fall on the liberal end of the political spectrum.

On search and seizure issues, Ginsburg’s tendency to vote in favor of the accused produces decisions that may result in an actual criminal being set free or receiving a lesser sentence. These decisions tend to draw criticism from hard line political conservatives because they can be exaggerated to show how the government “went easy” on a criminal.

However, such criticism would misconstrue Ginsburg’s actual reasoning in these cases, which is to preserve personal liberties. She gives more weight to the individual’s fundamental right to be left alone (typically a politically conservative ideal) than to the government’s interest in intruding on the individual.

[1] This essay takes into consideration the following Supreme Court cases: Florida v. Jardines, 133 S. Ct. 1409 (2013) (holding that a dog sniff by a trained narcotics dog occurring on suspect’s front porch is a “search” under the Fourth Amendment); Maryland v. King, 133 S. Ct. 1958 (2013) (holding that DNA collection and analysis of those arrested, but not convicted of serious crimes does not implicate the Fourth Amendment) (Ginsburg, J., dissenting); Herring v. United States, 555 U.S. 135 (2009) (holding that the Fourth Amendment was not violated when evidence introduced is obtained in reliance on a faulty arrest warrant that negligently remained in police database) (Ginsburg, J., dissenting); Georgia v. Randolph, 547 U.S. 103 (2006) (holding the Fourth Amendment violated when police search residents’ home where one consents and the other objects); Hudson v. Michigan, 547 U.S. 586 (2006) (Fourth Amendment’s exclusionary rule does not apply to “knock-and-announce”) (Ginsburg, J., dissenting); Samson v. California, 547 U.S. 843 (2006) (deciding that the Fourth Amendment was violated when police conduct a search of a parolee based solely on parolee’s conditional release); Groh v. Ramirez, 540 U.S. 551 (2004) (deciding that the Fourth Amendment was violated when police use a search warrant that does not describe the items sought, but the application did include the items sought); Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004) (holding that the Fourth and Fifth Amendments are not violated when law enforcement arrest and convict a person for not revealing his name) (Ginsburg, J., dissenting); Illinois v. Lidster, 540 U.S. 419 (2004) (deciding that checkpoints that were established to determine if people were driving drunk and question them about previous offenses does not violate the Fourth Amendment) (Ginsburg, J., dissenting); United States v. Drayton, 536 U.S. 194 (2002) (holding that the Fourth Amendment was not violated when law enforcement, engaging in random bus searches, does not request passengers’ consent or advise them of their right to refuse) (Ginsburg, J., dissenting).

[3] See Herring v. U.S., 555 U.S. 135 (2009) (Ginsburg dissenting from the majority holding that evidence obtained in reliance on an arrest warrant that negligently remained in the police department’s criminal database did not violate the Fourth Amendment).
[4] Florida v. Jardines, 133 S. Ct. 1409 (2013).
[5] Id. at 1413.
[6] Id.
[7] Id.
[8] Id.
[9]Id. at 1414.
[10] Id. at 1414.
[11] Id. at 1414-15.
[12] Id.
[13] Id at 1413.
[14] See e.g., Stenberg v. Carhart, 530 U.S. 914 (2000).