Life Sentences Blog

Davis v. United States represents the collision of two recent Supreme Court cases.  In Arizona v. Gant, the Court held that the Fourth Amendment permits an automobile search incident to an arrest only if the arrestee is within reaching distance of the vehicle during the search or if police have reason to believe that the vehicle contains evidence relevant to the crime of arrest.  But, in Herring v. United States, the Court held that the exclusionary rule does not require the suppression of evidence obtained during a search incident to an unjustified arrest, if the arrest resulted from no more than isolated negligence.  Perhaps more important than the specific holding of Herring was the Court’s full-throated endorsement of a very narrow, deterrence-oriented understanding of the function of the exclusionary rule.

The logical culmination of the two decisions is Davis, in which police conducted an illegal search in reliance on pre-Gant precedent, and the Court held that the exclusionary rule does not require suppression of the fruits of the search.  Along the way, the Court articulated in an even clearer and more forceful way the philosophical approach to the exclusionary rule that underlay Herring.

Notably, what had been a 5-4 split on the rule in Herring became 7-2 in Davis, with new Justices Kagan and (perhaps to a more limited extent) Sotomayor both apparently rejecting the views of their predecessors, who had dissented in Herring.  It appears that the Herring approach has now achieved a dominant position on the Court and will supply the governing principles for many years to come.

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In preparation for a talk I’m giving next month, I am reviewing all of the Supreme Court’s criminal cases from last term.  I’ll share my thoughts in a series of posts over the next couple of weeks.  I begin here with the Court’s two major Fourth Amendment cases: Kentucky v. King, 131 S. Ct. 1849 (2011), and Davis v. United States, 131 S. Ct. 2419 (2011).

For better or worse, both decisions showcase the strongly pro-police position of the current Court.  Both decisions accord a great deal of weight to the convenience of law enforcement officers and reflect a strong bias against suppressing evidence and thereby letting a guilty defendant walk free.  Although this has been the Court’s dominant sensibility for years, I think it noteworthy that neither King nor Davis was a 5-4 or even a 6-3 decision.  It appears that the addition to Justices Kagan and Sotomayor may have actually shifted the Court further to the right on Fourth Amendment issues.

It may be telling that both decisions are written by Justice Alito, who has struck me in a variety of contexts as the most reflexively antidefendant justice on the Court today — the real heir of Chief Justice Rehnquist in this regard.  If Alito is now the Court’s voice on Fourth Amendment issues, then we can expect significant further erosion of Fourth Amendment rights in the years to come.

Justice Ginsburg seems to be on the opposite end of the spectrum.  Only she dissented in both cases.  With Justices Souter and Stevens gone, is Ginsburg the last Fourth Amendment hawk left on the Court?

King: The first of the two cases (and the subject of the remainder of this post) broadens the exigent circumstances exception to the general rule against warrantless searches of the home.

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