Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, October 27, 2020

A Point of Agreement: The Fourth Amendment Requires Bright Lines for Confused Cops

When the Supreme Court heard argument recently in Torres v. Madrid, the Justices considered a wide range of interpretive approaches that might help them interpret the meaning of a Fourth Amendment seizure.[1] In a heated discussion of stare decisis, the Justices debated how closely they should hew to their prior decision in California v. Hodari D.,[2] which seemed to hold that officers seize a suspect at the moment they apply physical force to him, whether they successfully subdue him or not. The Justices then debated both the import and meaning of founding-era cases that involved seizures through physical force, though not in the context of criminal investigations. No matter how the Justices seemed to divide on those questions, there was broad agreement across the ideological spectrum that the Court should generate bright constitutional lines for officers to follow in the high-stakes, rapidly-evolving circumstances of an arrest. For instance, Justice Gorsuch spoke of the “clear administrable lines” in Fourth Amendment jurisprudence that require actual physical control to seize a physical object;[3] Justice Breyer urged counsel to argue for a clear bright line, suggesting that the decision in Hodari D. provided “as good a line as any.”[4]

The “bright lines for confused cops” theme is common in Fourth Amendment jurisprudence from a variety of interpretive perspectives. At least one purported aim of originalist interpretation is to limit judicial discretion by binding judges to a rule that fits with some conception of the original intent or meaning behind a textual provision.[5] For instance, Justice Thomas has decried “the hallmarks of subjective policymaking” found in some Fourth Amendment precedents, calling instead for a return to clearer originalist principles.[6] Justice Gorsuch has similarly claimed that the original understanding of the Fourth Amendment “do[es] not depend on the breach of some abstract expectation of privacy,” but instead applies only to “your protected things . . . Period.”[7]

Originalists are not alone in this aim to generate clear Fourth Amendment rules.[8] In 1981’s New York v. Belton, Justice Stewart claimed that Fourth Amendment doctrine should “regulate the police in their day-to-day activities” by providing “a set of rules which, in most instances, makes it possible to reach a correct determination beforehand” as to whether police conduct is constitutional.[9] The Court’s support for clear rules guiding police conduct continued in 2001’s Atwater v. City of Lago Vista, where Justice Souter argued that “a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need,” arguing instead that “the object . . . is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing.” [10] Justice Kennedy similarly noted in 2010’s Berghuis v. Thompkins the need to avoid ambiguity in a rule defining the point at which a defendant invokes their Miranda rights.[11]

This pressure to create bright Fourth Amendment lines is enhanced by the specter of the exclusionary rule. Because an officer’s mistaken interpretation of search jurisprudence will likely lead to the suppression of evidence under the exclusionary rule, and in turn may lead to the dismissal of charges against a guilty criminal, the Court sees the stakes of search jurisprudence as particularly high. To avoid frequently exonerating otherwise guilty defendants, the Court prioritizes clear, easy-to-implement rules that will guide officers’ conduct.[12]

In an era where polarization grips most of the country, it is useful to highlight one area where Justices across the ideological and interpretive spectrum can all agree on the goal their jurisprudence should serve. At least in the Fourth Amendment context, it seems that the Justices are not so far apart after all in our interpretive differences. Clear rules are desirable, especially when officers have to make split-second decisions in the field with potential life-or-death consequences. Perhaps, then, there is reason for optimism that the Justices can agree upon a clear definition of a Fourth Amendment seizure without descending into rancorous philosophical debates about constitutional interpretation.


[1] Jeffrey Bellin, Argument analysis: Justices spar over stare decisis, originalism, text and what counts as a Fourth Amendment “seizure,, Oct. 16, 2020,

[2] 499 U.S. 621 (1991).

[3] Transcript of Oral Argument at 35, Torres v. Madrid (No. 16-292),

[4] Transcript of Oral Argument at 52, Torres v. Madrid (No. 16-292),

[5] See, e.g,, Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, 864 (1989) (“Originalism does not aggravate the principal weakness of the [Constitutional] system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”); Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 35 (1971) (“The Supreme Court's constitutional role appears to be justified only if the Court applies principles that are neutrally derived, defined and applied.”); Michael J. Perry, The Constitution, The Courts, and Human Rights 9 (1982); Raoul Berger, Ely’s Theory of Judicial Review, 42 Ohio St. L.J. 87, 87 (1981) (“activist judicial review is inconsistent with democratic theory because it substitutes the policy choices of unelected, unaccountable judges for those of the people’s representatives.”); Mark Tushnet, Heller and the New Originalism, 69 Ohio St. L. J. 609, 610 (2008) (originalism aims to “minimize the role contested judgments play in constitutional interpretation.”).

[6] Carpenter v. United States, 138 S. Ct. 2206, 2244, 2246 (2018) (Thomas, J., dissenting).

[7] Carpenter v. United States, 138 S. Ct. 2206, 2264 (2018) (Gorsuch, J., dissenting).

[8] “[T]he feeling persists that fourth amendment doctrine should be expressed in the form of clear, precise rules that are easily applied by the police in routine law enforcement activities.” Gerald G. Ashdown, Good Faith, The Exclusionary Remedy, and Rule-Oriented Adjudication in the Criminal Process, 24 Wm. & Mary L. Rev. 335, 336 (1983); see also David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures, 56 Fla. L. Rev. 1051, 1094 (2004) (citing Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001) and New York v. Belton, 453 U.S. 454, 458 (1981)).

[9] New York v. Belton, 453 U.S. 454, 458 (1981) (quoting Wayne R. LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 141-42); see also United States v. Ross, 456 U.S. 798, 821 (1982).

[10] Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001) (citing United States v. Robinson, 414 U.S. 218, 234–235 (1973)).

[11] 560 U.S. 370, 381-82 (2010) (quoting Davis v. United States, 512 U.S. 452, 458-59 (1994)).

[12] Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 527-28 (2007) (citing Gerald G. Ashdown, Good Faith, the Exclusionary Remedy, and Rule-Oriented Adjudication in the Criminal Process, 24 Wm. & Mary L. Rev. 335, 336-37 (1983)).

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