CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 3, 2017

Brennan-Marquez & Henderson on Fourth Amendment Anxiety

Kiel Robert Brennan-Marquez and Stephen E. Henderson (New York University School of Law and University of Oklahoma College of Law) have posted Fourth Amendment Anxiety (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information — independent of its use — can be cause for “anxiety,” requiring the reconfiguration of substantive law. This change is significant, because it represents an acknowledgement that police cannot always be trusted to follow the rules. The “anxiety” invoked by the Birchfield Court, in other words, is the anxiety associated with (reasonable) distrust of state power.

Beyond offering a careful reading of Birchfield, this Article has two goals. First, we compare Birchfield to two fixtures of Fourth Amendment law that likewise stem from distrust of state power: the warrant requirement and the exclusionary rule. Birchfield’s holding — that police must obtain a warrant before performing blood tests pursuant to a DUI arrest — is both a vindication and an extension of longstanding Fourth Amendment principles. Like traditional warrants, “Birchfield warrants” have a prophylactic quality; they enable ex ante judicial supervision. But Birchfield warrants go further than traditional warrants; they aim to anticipate (and preempt) disregard for the rules later on, not just to safeguard particularity in the immediate search or seizure. In this sense, Birchfield warrants do ex ante what the exclusionary rule does ex post: deter abuse.

Second, we connect Birchfield’s “anti-anxiety” logic to two other areas of constitutional criminal procedure. The first are settings — speedy trial and double jeopardy cases, most notably — where the Court has recognized that potential uses of state power can provoke anxiety and, accordingly, require constitutional accommodation. We refer to this as the “Sword of Damocles” problem. The second area is Miranda, which, like Birchfield, deals with a problem of “closed-door” policing. In both Miranda and Birchfield, anxiety concerns (and the need for protective rules) arise because law enforcement decisions happen in the dark — in Miranda, due to the realities of traditional custodial interrogation, and in Birchfield, because collected information simply disappears into a government vault.

Ultimately, we conclude by suggesting that lower courts, emboldened by Birchfield, should be less wary of imposing ex ante restrictions on the seizure of information-rich evidence — and less wary of imposing use-restrictions on such evidence that is nonetheless seized. These insights are critical in the age of data-driven policing; they support, for example, careful judicial supervision of the seizure, cloning, and use of computer hard-drives (and other information repositories). Finally, we suggest that the best solution to the “Birchfield problem” may ultimately lie in technological constraint rather than, or in addition to, judicial oversight.

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