Importance of Court Skepticism

Taken together, the majority opinions in U.S. v. Ellison and Arizona v. Evans illustrate the importance of maintaining a strict approach to 4^th Amendment protections. When this standard is relaxed, the potential for governmental abuse becomes unacceptably high. It is the Court’s role to hold any threat to the 4^th Amendment as inherently suspicious. The adjudicating court must maintain a detailed grasp of the relevant facts of each case, as well as a general awareness of the “potential for Orwellian mischief.” If either of these responsibilities is not fulfilled by the Court, 4^th Amendment protections are significantly weakened.

In U.S. v. Ellison, it is unclear exactly what a LEIN search entails, specifically what private or non-private information it reveals. As the dissent notes, “there is minimal evidence in the record as to what information is available from the LEIN search.” Nevertheless, the LEIN search requires nothing, no warrant, no probable cause, no reasonable suspicion. However, these details should be the crux of the case. If police are able to view private information through a LEIN search, then such searches are suspicious under the 4^th Amendment and would likely require at least “reasonable suspicion,” if not probable cause. On the other hand, if only basic public information is accessible, then LEIN searches are more acceptable under 4^th Amendment doctrine. The Court’s priority should be to determine the scope of the search and make its decision accordingly. By assuming with little factual basis that the search only reveals “non-private” information, the majority is remiss. In scrutinizing a potential search, the Court must require more than a mere governmental assurance that the practice does not violate privacy concerns. This decision is the Court’s, not the government’s to make.

The Court makes a similar error in Arizona v. Evans. In ruling that the exclusion of evidence would have no deterrence effect, and is therefore unwarranted, the majority relies heavily on the testimony of governmental actors that record-keepers have no interest in the apprehension of individuals. However, the very reason the exclusionary rule exists is because courts have recognized that it is improper to entrust 4^th Amendment protections to the discretion of governmental actors. In many cases, the goals of law enforcement (including municipal court employees) indirectly contradict the privacy interests of individuals. While governmental actors may not have directly chosen to allow the error in this case, the suppression of evidence would nevertheless increase the probability that the problem is corrected in the future. Regardless of technology, human choice remains integral to law enforcement, whether in the determination of protocol for record-keeping, the selection of software, or the application of technology. In Arizona v. Evans, the application of the exclusionary rule would motivate governmental actors to take every possible step to ensure that similar record-keeping errors do not occur in the future. Allowing the evidence in Evans provides the perverse incentive for law enforcement to perpetuate a faulty system, in order to allow further illegitimate but protected searches.

Both cases demonstrate the danger of “giving the benefit of the doubt” to governmental testimony in Fourth Amendment cases. As tempting as it may be to believe law enforcement’s pleas that their methods are harmless, doing so woefully under-estimates the potential for the government to present sinister programs in an innocuous light. Whether the LEIN search uncovers private information, and whether court employees are subject to pressure to perpetuate quashed warrants are questions that are far to important to be glazed over by the Court.

The Court is an independent arbiter. The moment it accords governmental testimony a privileged position, it forfeits its greatest strength: objective neutrality. The Court must not forget the distrust that the Framer’s had for big government. After all, it is their Bill of Rights that the Court is entrusted with protecting.