The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned.
The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”
In Strieff, a police officer stopped Edward Strieff without reasonable suspicion of wrongdoing, learned during the stop that Strieff was the subject of a valid outstanding arrest warrant for a traffic violation, proceeded to conduct a search incident to arrest, and discovered illegal narcotics in his possession. The trial court denied Strieff’s motion to suppress the evidence because the discovery of the arrest warrant was an intervening event, essentially severing the taint of the unconstitutional stop.
The Supreme Court agreed that the purposes of the exclusionary rule would not be served in these circumstances: the discovery of the outstanding warrant “broke the causal chain between the unconstitutional stop and the discovery of evidence,” and the officer’s actions in any event were neither purposeful nor flagrant, amounting, in the majority’s view, to mere “errors in judgment.”
All of this makes sense—if the true purpose of the exclusionary rule is deterrence. But that cannot be right: in the context of no other individual right does the Court engage in this kind of cost-benefit analysis when determining whether the government can act contrary to a constitutional command. Consider the First Amendment: in R.A.V. v. St. Paul, Justice Antonin Scalia acknowledged the harm caused by the burning of a cross in the yard of an African-American family (“Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible”), yet the Court didn’t hesitate to find that harm outweighed by the importance of the defendant’s interest in self-expression. In other words, the defendant’s right to speak—in a way that arguably contributed little to public discourse—prevailed over the government’s interest in preventing the harm caused by that speech—harm not just to the intended victims, but to the community in which they lived.
Why does the Court not hold privacy in the same regard as speech? Perhaps because criminal defendants, whose privacy is lost amidst mistaken police judgments about the bases for reasonable suspicion and probable cause, make terrible representatives of our rights—they stand before a court arguing that the very evidence of their guilt should be suppressed. And the Court’s unwillingness to police privacy by sanctioning the suppression of such evidence has, by this point, attracted the weight of stare decisis. As is true with any constitutional principle, moreover, the Court continues to reason its way to new distinctions that serve the belief highlighted by Justice Thomas in Strieff, that the suppression of evidence “has always been [the Court’s] last resort, not [its] first impulse.”
The real problem is that what in the First Amendment context we simply call judicial review is, in the Fourth Amendment context, freighted with anxiety about the short-term consequences of rights-enforcement. But the long-term consequences of a consistent failure to order suppression may be more severe. As Justice Sonia Sotomayor notes in her Strieff dissent, the decision effectively gives law enforcement officers “an array of instruments to probe and examine” citizens, and the Court’s approval of these instruments gives them “reason to target pedestrians in an arbitrary manner,” which risks “treating members of our communities as second-class citizens.”
No current member of the Court, including Justice Sotomayor, seriously suggests abandoning the deterrence rationale for the exclusionary rule. But until some effort is made to rethink the rule’s foundations, the protection afforded privacy by the Fourth Amendment will continue to wither until it becomes little more than a parchment promise. Rights, after all, are only as good as the remedy for their violation. If courts can compel government actors to achieve their policy goals without offending free speech, it follows that they can do so in respect to privacy, too.