“First, the relative balance isn’t between cop and criminal, but cop and citizen.”

December 22nd, 2011

Scott Greenfield reviews Orin Kerr’s new article, An Equilibrium-Adjustment Theory of the Fourth Amendment:

Assuming that equilibrium was a viable goal to be achieved, then the balancing act should be between cop and citizen rather than criminal.  The Fourth Amendment may be vindicated through those arrested, but it protects everyone.  Just because we don’t learn of the law-abiding citizens who suffer the indignity of intrusion doesn’t mean they don’t exist, or they aren’t entitled to the protections the Constitution meant to confer.

The second flaw is that equilibrium reflects balance as seen through the eyeballs of a very select group, rather than some sort of societal agreement.  At the highest level, it consists of an agreement between 10 eyeballs, all of which are deeply rooted in the viability of the government; five people decide the relative balance of privacy for the rest of us, as opposed to some cognizable doctrinal basis for enforcing the constitutional prohibition.  One doesn’t get to be a Supreme Court Justice without having a major stake in maintaining societal status quo.  Unlike the rest of us, they trust the system, though some more than others.But the real fight isn’t on the Supreme Court level, but in every hot, dirty, packed courtroom around the country.  Every judge superimposes his or her vision of the balance of power between cops and defendants every time they rule on suppression.  Whether it’s elevating one fact over another to reach a desired outcome, or spinning what can’t be ignored to serve that goal, judges impose their sensibilities on every case before them.
This is very social-costy.