Transcript The Police Search Power: Is It Needed? GIL GUILLORY MOLINARI INSTITUTE Outline  Overview of U.S.

The Police Search Power:
Is It Needed?
GIL GUILLORY
MOLINARI INSTITUTE
Outline
 Overview of U.S. Law on Search
 Ethics of Search
 Investigation Theory
 Empirics of Searches and Warrants
 Searches on TV
 History of Search
 Search Outrages, 5 cases
 Costs and Benefits of Searches
 Conclusion
 Q&A
Types of Searches under US Law
•
•
•
•
•
•
•
•
•
Search and Seizure are like Salt and Pepper
Consent searches
Plain View Doctrine
Detention ("Terry Stop")
Frisk
Arrest
Warranted Search
Exigent Search
Asset Forfeiture
Burdens of Proof
beyond a reasonable doubt
criminal conviction
preponderance of the
evidence
civil suit
probable cause
arrest
reasonable suspicion
search
“Standard” Problems with Search
•
•
lack of controls
o warrant review, rejected infrequently
o not always public record (Texas, affidavit only)
o informant problems
 incentives
 lack of corroborating information
o judge-shopping
o extent of specificity is expansive
lack of consequences for breaking rules
o motion to suppress almost never granted
o “thin blue line” culture and practices
“Standard” Problems with Search
•
“Several studies have found that officers intent on seizing contraband, disrupting
illicit networks, or asserting their authority on the street frequently violated the
rules because their goal was not principally to secure an individual conviction.”
•
“[Gould and Mastrofski’s trained observers] …spent 2800 hours in the field
observing 12,000 police-citizen encounters. During this period they observed just
115 searches. About 30 percent were judged to be unconstitutional, but only 10
percent of those involved what they classified as egregious police misconduct.
About 7 percent of suspects who were arrested or cited were searched improperly”
•
Sutton (1986) found, “judges gave only perfunctory review of warrant
applications, and the participants subverted the process by fabricating evidence
when necessary.”
•
-- Skogan and Meares, Lawful Policing, Annals, AAPSS
Burdens of Proof Revisited
beyond a reasonable doubt
liberty
preponderance of the
evidence
property
probable cause
false arrest!
reasonable suspicion
trespass!
Trying to Justify Search, Part 1
Consequences vs. Property Rights
•
no searches -> no clearance of crime ->
no deterrence -> no law, no order
Reply
•
•
not true (hang on)
weakly version (substitute "less" for "no"),
does not follow
o Locks, doors, guns, dogs, alertness, patrols, etc. ->
deterrence -> order
Trying to Justify Search, Part 2
Minimax Principle
•
•
disutility of search is small
if potential gain by another is large, then this trumps
property rights
Reply
•
•
•
subjective value and utility monsters
Disutility sometimes high
rights don't concern value, they concern
property boundaries
•
Example: home vs. value of home
Trying to Justify Search, Part 3
Take a Chance on Search
• investigator takes a risk by trespassing
• if the search yields incriminating evidence, then it was not
trespass
• if not, the investigator can live with the consequences
• just a risk calculation
Reply
•
•
•
that's gambling, not justification
rights act as "side constraints" on future
prospective actions: ignore = no rights
search can go wrong
Any Justified Searches?
No, but:
• criminal has ceded his rights, is estopped from objecting to
rights violations
• recidivism is real
• promiscuous searches of those on Probation
Caveats:
•
•
•
crime vs. tort
severity of crime: murder > battery > fraud
time should restore rights
Crime Typology of Ahlberg-Knutsson
The Risk of Detection, Journal of Quantitative Criminology
Victim-crimes with interaction
• murder, rape, assault, battery, robbery, fraud
Victim-crimes without interaction
• arson, burglary, theft, vandalism
Detection-and-intervention crimes
• speeding, drunk driving, drug use
• drug trafficking, smuggling, prostitution
• gambling, tax evasion, regulatory crimes
Typology vs. Investigation
Where is the
evidence?
How
investigation
starts
Principal Object
of investigation
Victim with
interaction
Person
of the Victim
Victim complaint
Identity of criminal
Victim without
interaction
Property
of the Victim
Victim complaint
Identity of criminal
Detection-andintervention
Property
of the Criminal
Suspect observed
or informant
Contraband,
evidence of crime
Identity of the Criminal - Pivot Point
“On the whole, irrespective of type of crime, if the name of a suspect exists at the
time crime report is filed, the likelihood that the crime will be solved is great, but
otherwise not.” - Ahlberg and Knutsson, The Risk of Detection, Journal of
Quantitative Criminology
“The single most important determinant of whether or not a case will be solved is
the information the victim supplies to ... uniquely [identify] the perpetrator.” Greenwood, The Criminal Investigation Process, National Institute of Law
Enforcement and Criminal Justice
“When crimes are solved and arrests made, it is almost always due to extensive
information supplied by witnesses and victims as to the identity and whereabouts
of the offender.” - Skogan and Antunes, Information, Apprehension, and
Deterrence: Exploring the Limits of Police Productivity, Journal of Criminal
Justice
Identity of the Criminal - Pivot Point
Victim Crime
• start with most of the
evidence
• investigation centers on
finding the identity of the
criminal
• search power can't
help much
Detect-and-Intervene
• start with nothing but a
name and/or address
• investigation centers on
finding evidence of a crime
or contraband
• search power is
indispensable
Clearance Rates and Identification, U.S.
Crime
Percent of Crimes
Committed by
Non-strangers
(NCVS, UCR, and other
sources)
Average Clearance Rate
over multiple years
(UCR)
Murder
78%
65%
Rape
60%
47%
Robbery
35%
26%
Theft
<28%
19%
Motor Vehicle Theft
<11%
14%
Burglary
<5%
13%
Crime vs. Arrests, Annual U.S.
Crime
Estimated Total
Offenses,
Various Sources
Arrests,
UCR 2008
Ratio
Murder
15,300+
12,955
1.2+
Forcible rape
206,000
22,584
9
Aggravated assault
851,000
429,969
2
Burglary
2,680,000
308,479
9
Larceny theft
10,400,000
1,266,706
8
Prostitution
61,500,000
75,004
820
924,000,000+
1,702,537
540+
297,000,000
1,483,396
200
Drug abuse violations
DUI
In-Depth Research on Search Warrants
Van Duizend, Sutton, and Carter, The Search Warrant
Process: Preconceptions, Perceptions, Practices
 Seven confidential cities were chosen
 Observed every aspect of search warrant process:
application, judicial review, returns, arrests, court
cases – documents, interviews, observations
 Studied 917 search warrants
 Sponsored by National Center for State Courts
 223 page book, published in 1984
 Nothing has matched it in scope, before or since
Search Warrant Flowchart (simplified)
Preparation of Warrant
Magistrate Approval / Disapproval
Search, Possible Seizure
Return Filed
Warrants by Crime Type and Crime Rate
Central
Percent of
Offense
Warrants
Leading to
Issued
the
(vDSC)
Warrant
UCR
arrests in
category,
2008
Offenses
% of
Offenses
Known to
Offenses
per
Law
Known
known
Enforcement
arrest
in U.S., 2008
Violent
Crime
21%
594,911
1,292,693
11%
~2
Property
Crime
29%
1,687,345
8,994,167
75%
~5
Drugs
38%
1,702,537
~1,700,000
14%
~1
Vice and
Morals
9%
84,815
~85,000
1%
~1
Seizure Success
Proportion of Listed Items Seized
None
15%
Some (no more than half)
11%
Most or all (more than half)
74%
 Searches are very successful
 For contraband, this leads to high conviction rates
 Conviction rates not broken down by type
 Overall convictions per search warrant = 36%
 No indication whether search evidence was crucial
Estimate of Impact of Searches
 Drug cases







38% of warrants have drugs as central leading offense
41% of warrants have drugs sought
38% of returns have drugs seized
Cases in which a motion to suppress is granted is small, ~5%
Mere possession of drugs is an offense
74% of search warrants were substantively successful
Therefore, there is likely to be a high correspondence between
warrants issued and convictions made, on the order of 74%
 Similar arguments apply for obscene materials and
gambling equipment (7% of warrants)
Estimate of Impact of Searches on Victim Crime
Notes
Warrants with returns
642
Violent crime warrants
135
Property crime warrants
186
Total victim-crime warrants
321
Drug warrants
244
Other vice warrants
58
Total vice warrants
302
Cases filed
347
Convictions
266
Estimate of “easy” vice case
convictions
223
Balance of convictions
42
Productivity of victim-crime
searches
Assuming proportions from applications
<13%
(upper limit)
74% of vice searches with returns
Convictions per victim-crime warrant returns
Implications by Typology
 Victim-crime searches



Search power leads to <13% convictions per search
Suspect identity is needed to apply for a search warrant
But if identity is known, investigation is almost complete –
conviction rate due also to extra-search evidence: unknown
factor
 Vice crime searches


Search power leads to >74% convictions per search
Conviction rate due almost entirely to search evidence
Public Perception of Police and Search
 Police are present in TV dramas in numbers that far
outdistance their prevalence in even the most crimeridden cities
 TV characters have a far greater chance of becoming
a crime victim than real people
 TV criminals are much more likely to attack
strangers than real criminals
 from Gerbner et al., TV violence profile no. 8: The
highlights, Journal of Communication.
Public Perception of Police and Search
 “Exposure to the TV version of reality is related to
perceptions of the world ‘out there.’” – Heath and
Petraitis, Television Viewing and Fear of Crime:
Where is the Mean World?, Basic and Applied Social
Psychology
 So-called “cultivation” hypothesis – complicated and
nuanced
 But, for our purposes, we can use TV searches as a
proxy for public perception of police searches
Law & Order
 Franchise of American TV shows, 1990-present
 Very popular
 Genre is “police procedural”, allows for detailed
analysis
 Use as proxy for public perception of the uses and
efficacy of police search warrants
 We chose 20 episodes randomly from the 9 seasons
of the original show, Law & Order
 Analysis is ongoing
Law & Order – Preliminary Research Results
Real World
Percent from
previous row
Search warrant submitted to
magistrate
Law & Order
Of Murders
Known to Police
Percent from
previous row
65%
(clearance rate)
Of Murders
Known to Police
89%
Search warrants approved
97% (vDSC)
63%
100%
89%
Search warrant productive (returns
filed)
72% (vDSC)
46%
100%
89%
Case filed
39% (vDSC)
18%
100%
100%
Motion to suppress (exclusionary
rule)
40% (vDSC)
7%
49%
49%
Motion sustained
12% (vDSC)
<1%
50%
25%
Conviction rate
(on cases filed)
71% (UCR)
12%
Convictions with searches
Search evidence crucial to
conviction
89%
6% (vDSC)
<49%
63%
56%
Conclusions So Far
 Search is not ethically justified


Deprive a man of liberty -> reasonable doubt
Deprive a man of property -> preponderance of the evidence
 Search is not very significant in the investigation
of victim-crime
 Search is essential in the investigation of victimless
crimes
 Search is a tool of tyranny
 Search is the health of the state
History of Search
 The Fourth Amendment: Origins and Original
Meaning, 602-1789 by William J. Cuddihy, Oxford
University Press, 2009








English and American history
Practice
Court cases
Legislation and law
Legal theory
Popular literature and debates
Scholarly and ecclesiastical literature and debates
940 pages, well researched and noted, magnum opus
History of Search
 Hue and Cry




Ca. 400 – 1275
Anglo-Saxon institution
Customary Tribal Kinship Law
Security was organized as mutual defense within kinship groups
Reciprocal obligation
 Upon witnessing a theft, murder, etc. – raise the hue and cry
 All men must pursue the fleeing criminal and search as necessary
to find him
 Attendant promiscuous search

History of Search
 Hue and Cry


Largely unchanged until 1275
“For about two centuries after the Norman Conquest [1066], the
hue and cry remained little more than an immediate ‘hot’
pursuit by the public of fugitives caught publicly in a criminal
act.” - Cuddihy
 Norman Conquest brought changes to legal system



Mutual defense associations began to be broken down by
legislation – slow and complicated process (see Benson)
No longer in one’s interest to take up a hue and cry
1275, Hue and cry legislation was introduced to compel hue and
cry against the penalty of being liable for the crime
History of Search
 “Between 1275 and 1360, legislation equipped
coroners, justices of the peace, and village night
watches with sweeping powers to arrest persons
suspected of having perpetrated crimes beyond the
immediate past.” – Cuddihy
 At the same time, forcible entry during hue and cry
became accepted practice

Cases recorded in 1333, 1471, 1473
 Then, crown began to use searches for a multitude of
other purposes
The Crown and Search
 Tudor-Stuart ascent, 1485-1642
All over Europe, time of the rise of strong monarchies
 Black Death ~1350’s, economies were finally rebuilding
 Invention of printing, ~1450-55


Henry Tudor (1457-1509)
Victor of Wars of the Roses (1453-87), dynastic wars
 Ascended to English throne as Henry VII (1485-1509)
 Intercursus Magnus (1496), ended trade wars, fixed duties
 Rise of trade, rise of customs duties, rise of Enclosures (related?)


Henry VIII (1491-1547), reigned 1509-47
Martin Luther’s 95 Theses, 1517
 Suppression of English Protestants
 No surviving male offspring -> secret marriage 1533
 Separation from Rome 1533-1540

The Crown and Search
 Tudor-Stuart ascent, 1485-1642

Edward VI (1537-53), reigned 1547-53
Protestant establishment, reforms
 Anti-Enclosure riots


Mary I (1516-58), reigned 1553-58


Reconciled with Rome -> Catholicism re-established
Elizabeth I (1533-1603), reigned 1558-1603
Protestant Settlement of 1559 -> Anglican church re-established
 “I see and say nothing” -> Good Queen Bess
 Shakespeare, Drake – prosperity, exploration, arts
 East India Company royal charter, 1600

The Crown and Search
 Tudor-Stuart ascent, 1485-1642

James Stuart (James I) (1566-1625), reigned 1567, 1603-1625
Prosperity and arts and literature continued
 Shakespeare (1564-1616), Francis Bacon (1561-1626)
 Wrote Trew Law of Free Monarchies & Basilikon Doron 1597-98
 Gunpowder plot, Nov 5th, 1605


Charles I (1600-49), reigned 1625-49
Power hungry, advocate of divine right of kings, power struggles
with Parliament, raised taxes without consent of Parliament
 Married a Catholic
 Grand Remonstrance 1641 -> First Civil War 1642-45
 Second Civil War 1648-49 -> tried, convicted, executed

The Crown and Search
 Uses of search by monarchs
Class regulations, 1610 “Poaching” of pheasants and partridges
 Ostentatious hats
 Bowling, dice
 Counterfeiters, 1490
 Religious dissenters, 1581
 Plotters against the throne, 1603
 “Hoarders” of grain, 1527, 1586, 1598
 Adulterated spices, drugs, butter, beer, ale, 1603, 1637
 Restrict consumption of meat: frequent searches of butcher shops,
taverns, etc., 1560-1595
 Prevent export of bullion, 1600, 1611

The Crown and Search
 Uses of search by monarchs
Wool smuggling, 1614
 Monopoly of import of starch -> Forbidden domestic manufacture
of starch, 1598
 Similar monopolies and search powers for velvet, satin, silk, 1601
 Regulation or prohibition of import of tobacco, embroidered cloth,
glass, several types of wire and wine, 1619-38
 Military deserters, 1592
 Guild searches: soapmakers, skinners, barbers, joiners,
basketmakers, goldsmiths, clothiers, weavers, etc.

• Anecdote. In 1617, so many searches of foreigners had occurred that
the Mayor of London asked for a list of them to assist in compiling a
census of foreigners in the city.

Customs searches
The Crown and Search
 Major Institutions for Search
High Commission to uproot religious non-conformity, established
1559, expanded to seditious materials, 1611
 The Company of Stationers, patent of 1557
 Counterfeit, seditious, heretical, or other illegal books
 The Privy Council, 1591-1642
 War on dissent, example:
 1592, every Justice of the Peace was instructed to secretly and
suddenly visit the houses of neighboring religious
nonconformists, and to seize their arms and armor.

The Crown and Search
 Major Institutions for Search
The Star Chamber, 1591-1641
 Purpose: hear political libel and treason cases
 Issued search commands
 Letter of Star Chamber prompted by “lewd and malicious” graffiti,
1593:
 “to make search and apprehend every person so to be suspected,
and for that purpose to enter into all houses and places where any
such may be remaining, and upon their apprehension to make like
search in any the chambers, studies, chests and other like places for
all manner of writings or papers that may give you light for the
discovery of the libelers.”

The Crown and Search
 Meteoric rise in scope and frequency of searches,
1485-1642
 Led to strong but ineffective/diffuse opposition
 Sir Edward Coke formulated theory of unreasonable
searches, published Institutes of the Laws of
England, 1642-44
Reasonable = written warrant, specific
 No legal standard suggested
 Very influential book, but not on the operation of law/practice

The Colonies and Search
 Search in the colonies, 1620-1728





Sabbath
Alcohol
Revenue
Dissent
Slave Patrol
The Massachusetts Accident, part 1
 Theocracy -> against discretion of men ->
codification of law and limit discretion
 Nathaniel Ward’s Body of Liberties, 1641



Common law lawyer from England
Did not forbid promiscuous searches
Required warrants and all warrants had to issue from the
legislature
The Massachusetts Accident, part 2
 English Fraud Act of 1660






Originally framed as a temporary experiment
Authorized Lord Treasurer, any Baron of the Exchequer, and
the chief magistrate of any port to issue a warrant on sworn
complaints of smuggling
Search must be daytime
Duration of warrant limited to 1 month from infraction
Informant swore oath
Fruitless search defined as trespass, informant liable
 Massachusetts used it as a template for their Naval
Office Act of 1682 (customs / smuggling)
The Massachusetts Accident, part 3
 Search Practices Evolved, 1682-1752

Violence, sudden increases in searches, reined in by town votes
 Critical Years in Massachusetts, 1752-1764



1752, to prevent the introduction of smallpox-infected baggage
and clothing into the colony, the General Court enacted specific
search warrants “to break up any house, shop of place
particularly mentioned in such warrant”
1752-64, general to specific transition in impost, excise, and
game poaching legislation
Also contained rudimentary version of probable cause, and
sometimes stronger language

“just cause”, “just grounds”, “vehement” suspicion
Townshend Revenue Acts
 Background








Seven Years War (1756-63) -> British Debt -> Raise Revenue in
the Colonies
Sugar Act, 1764, hated
Stamp Act, 1765, hated
Stamp Act repealed & Declaratory Act, 1766
All of these taxes the colonists claimed unconstitutional
Charles Townshend (Chancellor of the Exchequer) mistakenly
believed that colonists thought this only for direct taxes
To avoid resistance, proposed indirect taxes (import duties)
Primary aim (?) was to regain “power of the purse” by paying
salaries for some colonial governors and judges
Townshend Revenue Acts
 Revenue Act of 1767




Placed new import duties on paper, paint, lead, glass, and tea
These items were not produced in North America and colonists
were only allowed to import from Great Britain
Reaffirmed the legality of writs of assistance (general search
warrants) for customs officials to find smuggled goods
Customs officers could not cope with smuggling-happy colonists
Resistance to searches, open defiance by public
 “Liberation” of seizures, etc.
 In the 2 ½ years preceding Feb 1768, only 6 customs seizures had
been productive, and only one conviction had resulted


General warrants became political casualties throughout the
colonies, 1767-1774
Emergence of Fourth Amendment
 Specific warrants and “meat on the bone” developed
in new states, 1775-1787
 Virginia plan -> US Constitution
 Political gun of anti-federalism caused Madison to
draft the Fourth Amendment


No writing from him on his intent or justification for the
implied power
BTW, doctrine of enumerated powers vs. search power
 Fourth Amendment is not considered or clear
History – What Do We Learn?
 Searches are not carefully crafted “crime-fighting
techniques”
 Searches were asserted but not justified prerogative
of the state
 Long and slow intellectual and political battle has
yielded


Specific, warranted searches supported by oath or affirmation
Our work is not yet done
 Ideas trumped practice and law
Search Abuses, Case 1
 1550, The Oxford University Searches

“Among the first institutions to undergo a general search for
religious reasons were several libraries of Oxford University, in
1550, under the Privy Council’s directive of that year for the
confiscation of Catholic publications. Starting with the Merton
College Library, the Oxford searchers, who included zealous
students, the illiterate, and the poor, grabbed anything with a red
cover in the belief that such books were Catholic. Hence, entire
cartloads of invaluable manuscripts on astronomy and
mathematics as well as theology were seized, hauled to the city
square, and immolated.” - Cuddihy
Search Abuses, Case 2
 1590’s, Religious Control

“The Crown’s officers developed numerous stratagems of search in
the 1590s to catch Catholics off-guard. Break-ins of houses
occurred at all times of the day and year but were most common at
dawn, during dinner, late at night, and on holidays, when priests
were celebrating mass before assembled congregations. One
method was to encircle a house clandestinely with armed men, wait
until unsuspecting servants opened a door at daybreak, and rush in
suddenly and en masse, catching everyone by surprise. Violent
entrance was more usual, however, and a sledge hammer was
frequently used to obtain it, causing sudden, traumatic death to
many an aged householder. Once inside, the invaders locked family
members in a room to prevent interference and then went about
their business meticulously and ruthlessly.” - Cuddihy
Search Abuses, Case 3
 1999, Drug Raid
“Police officers conducted a late night drug raid on the home of
Edwin and Catherine Bernhardt. Police broke into the couple’s
home and threw Catherine Bernhardt to the floor at gunpoint.
Edwin Bernhardt, who had come down from his bedroom in the
nude after hearing the commotion, was also subdued and
handcuffed at gunpoint. Police forced him to wear a pair of his
wife’s underwear, then took him to the police station, where he
spent several hours in jail. Police later discovered they had raided
the wrong address.” – Radley Balko, Overkill: The Rise of
Paramilitary Police Raids in America, Cato, 2006
 “[The police officers] made a mistake. There’s no one to blame for a
mistake. The way [the Bernhardts] were treated has to be judged in
context of a war.” – City Attorney Richard Kane

Search Abuses, Case 4
 1998, Gambling Raid (source: Balko)
Virginia Beach SWAT team shot and killed security guard Edward
C. Reed
 Police say they approached the tinted car where Reed was working
security, knocked and identified themselves, at which point Reed
refused to drop his handgun.
 Reed’s family insists that the police version of events is unlikely,
given that Reed was a security guard and had no criminal record.
More likely, they say, Reed mistakenly believed the raiding officers
were there to do harm, particularly given that the club had been
robbed not long before.
 According to police, Reed’s last words were, “Why did you shoot
me? I was reading a book.”

Search Abuses, Case 4
 1998, Gambling Raid
Club owner Darrin Hyman actually shot back at the SWAT team.
 Prosecutors later declined to press felony changes against Hyman,
concluding he had good reason to believe he was under attack.
 Hyman was convicted of a misdemeanor gambling offense –
playing a dice game with friends – and of discharging a firearm.

Search Abuses, Case 5
 2006, Gambling Raid (source: Balko)
Fairfax Virginia SWAT team served a search warrant on Salvatore
Culosi, Jr., whom they suspected of gambling on sporting events
 When the SWAT team confronted Culosi as he came out of his
home, one officer’s gun discharged, striking Culosi in the chest and
killing him.
 Police concede that Culosi had no weapon and made no meanacing
gestures as police prepared to arrest him.

Costs and Benefits of Search Power
 What counts as a benefit or a cost?




Gambling arrest / seizure / conviction
Prostitution arrest / seizure / conviction
Drug arrest / seizure / conviction
Asset forfeiture
 Must have ethical framework to conduct cost-benefit
listing
 Subjective value -> No cost / benefit “calculus”
 Listing benefits and costs is useful for understanding
Costs and Benefits of Search Power
Item
Impact
Benefit
Victim-crime clearance rate

Detection-intervention crime
clearance rate


Botched raids


Security of property rights


Asset forfeitures


Cost

($16/yr/hhold)
Conclusions
 Searches are unjust
 Searches are less productive than TV portrays
 Searches are marginally useful for real crime
 Searches are essential for malum prohibitum crime
 Therefore, Search is the health of the state


History shows this
Search was never a crime-fighting tool introduced by a
benevolent king: it has always been a tool of taxation,
suppression of dissent, and projection of control
 Search is not a “good deal” considering costs and
benefits
The Search Power: Is it Needed?
NO
It is
Unjust,
Unnecessary,
and a Threat to
Liberty and Property