(a) The use of any information-gathering technique, as defined in § 2.02, which rises to the level of a constitutional “search” or “seizure” should be conducted pursuant to a judicially issued warrant, absent the ability to obtain one in a timely fashion.
(b) When conducting a stop, search, frisk, or arrest, or engaging in other information-gathering activity (as defined in § 2.02) in the absence of a warrant, officers should, insofar as is practicable and consistent with the safety of officers and others, document in advance the grounds for their action.
(c) Legislative, executive, and judicial actors should work to simplify and streamline the warrant-acquisition process without reducing any jurisdiction’s substantive legal threshold for acquiring warrants.
a. Generally. In the course of pursuing legitimate policing objectives, see § 1.02, officers possess the authority to intrude—sometimes substantially—on individual liberty and autonomy. They are authorized to stop individuals, to take them into custody, to search their bodies and through their belongings, to conduct surveillance, and even to resort to the use of force. Although these actions are at times necessary, they interfere with individuals’ freedom of movement, implicate property and privacy interests, and risk serious injury to person and property.
Under both our national and state constitutions, there is a two-fold check on the state’s ability to intrude into individual’s lives in these ways. First, officers must have an adequate predicate for their actions. Second, whenever possible, officers engaging in these intrusions are to obtain warrants from neutral magistrates. The warrant process allows for judicial scrutiny before the fact of the reasons offered by the state for intruding into individuals’ lives. The warrant requirement also may encourage officers to scrutinize their own actions more carefully in anticipation of having to justify their request to a third party.
Obtaining a warrant often is not feasible, however, even for very substantial intrusions. Officers often must act in the moment. And when they do, it is left to the parties, supervisors, external reviewers, and the courts to determine after the fact what transpired and why. Whether they occur before or after the fact, inquiries into the basis for government intrusions are essential, because whenever the government deprives individuals of life, liberty, or property, adequate justifications are required.
Yet, there often are substantial problems with recreating events after the fact. Memories fade. Cases often turn on a factual dispute about what an officer did or did not see. Because most challenges to searches and seizures are raised in criminal cases in the context of a motion to suppress, judges see only the cases in which inculpatory evidence in fact was found. Consequently, there is a natural tendency on the part of courts to credit the officer’s conclusion that there was sufficient cause to justify the intrusion—not to mention a reluctance to throw out probative evidence after the fact. In addition, there is, unfortunately, a body of evidence that indicates officers sometimes stretch the truth to justify ex post the actions they have taken.
This Section addresses these competing concerns in three ways. First, to the extent “searches” and “seizures” are involved (as defined by federal or state law), it sets out a strong presumption in favor of obtaining warrants whenever feasible. Second, in circumstances in which it is not feasible to do so, it encourages officers nevertheless to document their reasons for acting before the fact in order to facilitate ex post review. Third, it encourages legislatures to streamline and simplify the warrant process so that warrants can in fact be obtained in as many cases as possible.
b. Preference for warrants. For the reasons stated above, officers ordinarily should obtain a warrant any time they engage in activity that constitutes a seizure, search, or arrest under the national or state constitutions, or any other time mandated by state or local law. Although the U.S. Supreme Court repeatedly has expressed just such a warrant preference, it nonetheless has sanctioned a number of categorical exceptions to the warrant requirement, including for arrests, automobile searches, and certain administrative searches. Often, in the interest of preserving bright-line rules, courts have extended these exceptions to circumstances in which it would have been entirely feasible to obtain a warrant before the fact. Given the weighty rationale for warrants, these exceptions cannot be justified to the extent obtaining a warrant is practicable. The advance of technology has served to make obtaining warrants—whether telephonically or by using other tools such as video conferencing—more expeditious. The Court itself has recognized the availability of these tools and insisted upon warrants in recent cases such as Riley v. California, 573 U.S. 373 (2014) (requiring a warrant before searching a cell phone), and Missouri v. McNeely, 569 U.S. 141 (2013) (requiring a warrant for a blood draw in a situation involving concerns about driving under the influence, so long as one can be obtained expeditiously). Agencies should adopt policies making clear that warrant exceptions should not be relied upon when it is possible to obtain a warrant.
The primary use of warrants occurs around suspicion-based policing activity, as described in Chapter 3, but there also is a place for warrants regarding some suspicionless policing activity, as described in Chapter 5. The Supreme Court has required such warrants in connection with certain administrative searches, and some states have done the same with regard to police roadblocks. Although the warrants in these instances are not based on cause to believe any individual has engaged in prohibited activity, such warrants nonetheless ensure that enforcement officials are proceeding according to a lawful and neutral plan.
c. Recording in advance. It is not always possible to obtain a warrant in a timely fashion, and the law rightly excuses warrants in situations involving “exigent circumstances.” However, the advent of body-worn cameras (BWCs) and other contemporaneous recording devices makes it possible to record in advance an officer’s justification for conducting a search or seizure. When activating their BWCs, officers can make a simple statement of what they are about to do and the grounds for doing it. Given the increasing availability of this technology, when obtaining a warrant is not possible, officers should document the rationales for their actions either via BWC or other time-stamped technology in order to facilitate more accurate and informed ex post review by supervisors and courts. If unable to make such record in advance, officers should record the grounds for conducting a search or seizure as soon as possible after the action.
d. Facilitating obtaining warrants. One reason the warrant requirement is honored more in the breach is because the process of obtaining warrants can be laborious and time-consuming. But because the law rightfully expresses a preference for warrants, the warrant process should be simplified whenever possible. Technology can serve to facilitate the warrant process. Many jurisdictions have, for several decades, allowed for telephonic warrants. Video-conferencing software can make it easier for magistrates to speak quickly and directly to officials requesting warrants and to ask them questions. Technology also can speed the receipt of warrant applications and the delivery of warrants, and it could simplify greatly the application process itself. For example, voice-recognition software and artificial intelligence could help officers to complete applications quickly without having to sit down at a computer. All system actors should collaborate to find new and innovative ways to make the warrant process simpler, faster, and more effective. Nothing in this Section is meant to lower the substantive standard for obtaining a warrant or to encourage magistrates to “rubber stamp” warrant applications. The process itself, however, could be simplified to make available the careful scrutiny by a neutral magistrate that the law favors. See § 14.04 (Judicial Responsibilities with Regard to the Policing Function).
This Section adopts the U.S. Supreme Court’s long-stated preference in favor of obtaining warrants in all cases in which it is possible for policing officials to do so. When obtaining a warrant is not possible, it urges officers nevertheless to document their justification for intrusions in advance, so long as it is safe and practicable to do so. The reason for these preferences is to ensure both that government action with a consequential impact on individuals is justified and that the decision to permit such action is made as often as possible in advance by a judicial officer.
1. Ex ante v. ex post justifications and the constitutional warrant preference. A central requirement of the Fourth Amendment is that all searches and seizures must be justified. See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967) (holding that searches without warrants based upon probable cause are, with few exceptions, per se unreasonable); Terry v. Ohio, 392 U.S. 1 (1968) (disallowing stops and frisks on something less than “reasonable suspicion”); Brown v. Texas, 443 U.S. 47 (1979) (requiring that searches conducted in the absence of reasonable suspicion be justified on the basis of government necessity, balanced against nature of intrusion on individual). Requiring justification for government action that has adverse effects on individuals is the sine qua non of the rule of law. Adverse government action in the absence of justification is arbitrary, and thus impermissible. See Camara v. Municipal Court, 387 U.S. 523 (1967) (explaining that the “basic purpose” of the Fourth Amendment “is to safeguard the privacy and security of individuals from arbitrary invasions by government officials.”)
Officials may be required to justify a particular intrusion before it takes place (ex ante), or after the fact (ex post). For reasons of efficiency, the law generally relies upon ex post review. See, e.g., Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 Rand J. Econ. 271, 271-272 (1984); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 885-886 (1991).
When it comes to policing, however, there are a number of reasons why the law prefers ex ante reason-giving. First, the standards against which courts ultimately judge individual officers’ conduct—like “reasonableness” or “probable cause”—are “not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979); accord, Illinois v. Gates, 462 U.S. 213, 232 (1983). Officers, acting on their own, may evaluate circumstances very differently than a judge. See William C. Heffernan & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. Mich. J. L. Reform 311, 339 (1991) (“The rules of search and seizure . . . are sufficiently vague that even the best-informed officers are routinely mistaken about what they may and may not do.”). For this reason, ex ante review by a judicial decisionmaker is preferred. Christopher Slobogin, The World Without A Fourth Amendment, 39 UCLA L. Rev. 1, 14 (1991) (“U]nless search and seizure law can be put in a form that police . . . can grasp, we would have to require that ex ante review be undertaken by a legally trained decisionmaker in every case[.]”).
Second, a requirement of ex ante reason-giving will cause officers to stop and consider their actions critically. Research in cognitive psychology demonstrates that individuals make more deliberate and rational decisions when they are forced to justify their decisions to others and to confront opposing arguments. See Asher Koriat, Sarah Lichtenstein & Baruch Fischhoff, Reasons for Confidence, 6 J. Experimental Psychol.: Hum. Learning & Memory 107, 113-114 (1980); Jennifer S. Lerner & Philip E. Tetlock, Accountability and Social Cognition, 1 Encyclopedia of Hum. Behav. 1, 1-10 (1994); see generally Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1641-1647 (2012) (reviewing the psychology literature). Indeed, the mere fact of having to ask for permission—and to explain their basis for suspicion—can induce officers to make better decisions as to whom to search or seize. By some estimates, police find contraband or evidence in as many as 90 percent of searches conducted pursuant to a warrant, as compared to just 10–20 percent of consent searches, and roughly 50 percent of searches supported by probable cause. Bar-Gill & Friedman, supra, at 1655-1657; Richard Van Duizend et. al., The Search Warrant Process: Preconceptions, Perceptions, Practices 40 (1985); Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651, 674 (2002). The comparatively high hit rate for warranted searches suggests that even if magistrates approve warrants liberally, the warrant process prompts officers to self-edit and refrain from seeking warrants in cases in which the facts fail to establish sufficient cause to justify the intrusion. Third, ex ante evaluation of reasons is necessary in the policing context because, as discussed in § 14.03 (Statutory Remedies for Violations), ex post remedial alternatives often are ineffective, both depriving individuals of any remedy to which they might be entitled and limiting systemic deterrence. Exclusion often fails as a remedy because judges are reluctant to release guilty defendants even if evidence is seized unlawfully. And individuals seeking money damages face a host of barriers, from immunity doctrines to harms that are not easily remedied by monetary relief.
For all of these reasons, there is a preference for articulating reasons and getting approval prior to police action that implicates individual rights. Traditionally, that ex ante review has occurred through the issuance of warrants.
The U.S. Supreme Court has said time and again that warrantless searches and seizures are, with some exceptions, “per se unreasonable under the Fourth Amendment,” Katz, 389 U.S. at 357; see also Riley v. California, 573 U.S. 373, 381-382 (2014) (“Where a search is undertaken by law enforcement officials . . . reasonableness generally requires the obtaining of a judicial warrant.”) (internal citations omitted). Warrants are necessary to guard against arbitrary and unjustified searches and seizures by ensuring that the decision to intrude on individual liberty is made by a neutral magistrate and not by an “officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948); Marshall v. Barlow’s, Inc., 436 U.S. 307, 323 (1978) (“The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers . . . as to when to search and whom to search. A warrant, by contrast, would provide assurances . . . that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan[.]”). As the citation to the Marshall case makes clear, warrants are not only required when a search occurs based on cause to believe someone had engaged in prohibited conduct. Even with regard to suspicionless police activity described in Chapter 5, warrants can play an important role in ensuring that the enforcement agency is acting in a way that is according to law and a neutral plan, rather than engaging in arbitrary or discriminatory activity. Accord, Camara v. Municipal Court, 387 U.S. 523 (1967) (requiring area or other sorts of warrants for housing inspections to ensure searches are justified and non-arbitrary); N.H. Rev. Stat. Ann. § 265:1-a (2020) (requiring a warrant to authorize sobriety checkpoints); Utah Code Ann. § 77-23-104 (West 2020) (outlining the process for magistrate approval of administrative traffic checkpoints).
2. The failure to require warrants and consequences. Despite the commendable purposes of the warrant requirement, in reality it largely has “been honored in the breach.” Bar-Gill & Friedman, supra, at 1652. This failure to require warrants is prevalent both with regard to suspicion-based (Chapters 3 and 4) and suspicionless (Chapter 5) searches and seizures.
The U.S. Supreme Court has created a bevy of exceptions to the warrant requirement. See, e.g., Warrantless Searches and Seizures, 44 Geo. L.J. Ann. Rev. Crim. Proc. 48 (2015) (identifying at least 13 exceptions); California v. Acevedo, 500 U.S. 565, 582-583 (1991) (Scalia, J., concurring) (suggesting there are 22 exceptions). To name but a few categorical exceptions, police are permitted to conduct warrantless searches of people whom they lawfully arrest; of vehicles they stop; of vehicles, people, and packages that cross the border; and of “heavily regulated industries” such as liquor stores and automobile junkyards. See Chimel v. California, 395 U.S. 752 (1969); California v. Carney, 471 U.S. 386 (1985); United States v. Flores-Montano, 541 U.S. 149 (2004); United States v. Montoya de Hernandez, 472 U.S. 531 (1985); United States v. Ramsey, 431 U.S. 606 (1977); City of Los Angeles v. Patel, 135 S. Ct. 2443, 2454 (2015).
The difficulty is that these exceptions often bear no relationship to the purpose of the warrant requirement or reasons for not adhering to it. The need for a warrant obviously must be excused when exigency makes obtaining a warrant impossible. See Stuntz, supra, at 920 (explaining how many traditional exceptions to the warrant requirement, such as for arrests and searches incident to lawful arrest, are grounded in exigency). But other exceptions, like the automobile exception, excuse the need for warrants even when exigency is not present and officers would have had ample opportunity to obtain a warrant. See Barry Friedman, Unwarranted: Policing Without Permission (2017); see, e.g., United States v. Chadwick, 433 U.S. 1 (1977). This failure to require warrants extends to suspicionless searches as well. The Court has permitted warrantless searches in many cases of suspicionless searching, including drunk-driving and immigration checkpoints; inspections of regulated businesses; drug testing of students and employees; and collection of DNA samples from felony arrestees. See Christopher Slobogin, Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine, 102 Geo. L.J. 1721, 1727 (2014) (citing cases).
As a result, warrants have become the exception rather than the rule. By some estimates, less than one percent of all searches today are conducted pursuant to a warrant—fewer still in the case of arrests. Bar-Gill & Friedman, supra, at 1666. See also Groh v. Ramirez, 540 U.S. 551, 573-574 (2004) (Thomas, J., dissenting) (“[O]ur cases stand for the illuminating proposition that warrantless searches are per se unreasonable, except, of course, when they are not.”); Sam Kamin & Justin Marceau, Double Reasonableness and the Fourth Amendment, 68 U. Miami L. Rev. 589, 601 (2014) (“By the early 2000s, the requirement of a warrant had become a requirement in name only.”). Many of the ills identified elsewhere in these Principles—from racial profiling to overreliance on pretextual searches to the sheer number of unproductive searches—have some basis in a failure to take a warrant requirement seriously. See, e.g., Gross & Barnes, supra at 671-672 (describing how police have used traffic stops as a pretext to conduct warrantless searches for drugs).
3. Using technology to facilitate acquiring warrants. Modern technology makes it possible to obtain warrants in a variety of circumstances in which exigency once would have justified a departure from the warrant requirement. Although warrant innovation is hardly a recent phenomenon—telephonic warrants made their debut as early as the 1970s—the U.S. Supreme Court has indicated that recent advances in wireless internet technology have made it easier than ever for enforcement officials to obtain a warrant on short notice, and that such advances should be used. See Riley, 573 U.S. at 401; Missouri v. McNeely, 569 U.S. 141, 154-155 (2013).
At present, a majority of states permit officers to apply for warrants remotely. McNeely, 569 U.S. at 154. In a number of jurisdictions, officers can submit warrant applications via secure electronic-document systems, thereby saving officers the time and effort of driving to court (or to a judge’s house at night). See, e.g., Ind. Code § 35-33-5-8 (2018); Mo. Rev. Stat. § 542.276 (2010). In Butte County, California, for example, officials estimate that doing so has saved an average of “three to four hours of combined officer, judge, and district attorney time for each signed warrant.” Jessica Hughes, Butte County, Calif., Streamlines Search Warrant Approvals, GovTech, Jan. 19, 2015, http://www.govtech.com/public-safety/Butte-County-Calif-Streamlines-Search-Warrant-Approvals.html.
Other jurisdictions have cut down further the time it takes to get a warrant by equipping officers with wireless tablets that permit officers to fill out an electronic probable-cause form, upload it to a magistrate judge, video conference with the magistrate, and receive a signed, electronic warrant. See David Smith, An iPad for Every Agency, The Prosecutor (Nov.–Dec. 2013); see also Jenni Bergal, Police are now taking roadside blood samples to catch impaired drivers, PBS NewsHour, Apr. 19, 2019, https://www.pbs.org/newshour/nation/police-are-now-taking-roadside-blood-samples-to-catch-impaired-drivers (describing a similar system). In one Texas county, a judge swears in officers and approves warrant applications using a video chat program, reducing the wait time for warrants from two to three hours to “10 minutes.” Chacour Koop, Texas video chat program aims to bust more drunken drivers, Statesman, Sept. 24, 2016, https://www.statesman.com/NEWS/20160924/Texas-video-chat-program-aims-to-bust-more-drunken-drivers.
Jurisdictions should encourage greater use of warrants by taking advantage of these new technologies and adopting more streamlined warrant-application systems. In doing so, jurisdictions can mitigate any reliability and security concerns through careful regulation. To best replicate the reliability benefits of in-person warrant hearings, jurisdictions should adopt procedures that include requiring the warrant issuer to administer an oath to the warrant requester and requiring the sworn testimony to be recorded and transcribed. See, e.g., S.D. Codified Laws § 23A-35-5 (1978). Jurisdictions also might consider making greater use of video-conferencing technology, which more closely resembles in-person proceedings by allowing a magistrate to assess an officer’s credibility “face to face.”
Admittedly, utilizing the warrant procedure more frequently likely will require that there be more magistrates available to render warrant decisions. That, however, is the cost of adhering to the oft-stated warrant requirement. And the costs incurred in providing magistrates will be offset, one surmises, by the benefits of greater adherence to constitutional rights. In addition, the Supreme Court has held that greater deference is warranted in review of warranted searches than unwarranted searches, meaning that there simply may be a redistribution of judicial time. Compare Illinois v. Gates, 462 U.S. 213, 236-237 (1982) (reaffirming that “great deference” should be given to the probable cause determinations of magistrates issuing warrants), with Ornelas v. United States, 517 U.S. 690, 699-700 (1996) (holding that probable cause determinations for warrantless searches should be reviewed de novo).
4. Prior justification in the absence of warrants. Even in the absence of a warrant, officers should whenever possible detail their reasons for taking enforcement action prior to doing so. The fact that exigency excuses obtaining a warrant does not mean an ex ante justification is any less important. Having that justification would make it much easier for courts, after the fact, to assess the reasons an officer actually had ex ante and their validity.
Today, technology provides an easy way for officers to record their justifications before they act. Increasingly, officers are wearing body cameras. They are typically required to activate those cameras prior to engaging in enforcement activities of the sort that require legal justification. See, e.g., N.Y.C. Police Dep’t, Procedure No. 212-123 (2018) (requiring officers to turn on body-worn cameras prior to conducting searches, stopping vehicles, using force, or making arrests); L.A. Police Dep’t, Special Order No. 12 (2015) (requiring activation prior to vehicle and pedestrian stops, searches, arrests, uses of force, in-custody transports, and “other investigative or enforcement activities where, in the officer’s judgment, a video recording would assist in the investigation or prosecution of a crime[.]”); Chi. Police Dep’t, Special Order S03-14 (2018) (requiring activation in similar circumstances, as well as during seizures of evidence, interrogations, and requests for consent to search).
With the camera (which includes both audio and video recordings) engaged, it is a simple matter for officers to state aloud why they are about to take the action they are. In some jurisdictions, officers already are required to state certain information on their body camera, establishing the ability to take this step. See, e.g., Phila. Police Dep’t, Directive 4.21 (2018) (requiring officers who deactivate their cameras during an encounter to “state aloud, while the device is still activated, why the device is being deactivated.”). Of course, officers should not be required to provide ex ante justifications in situations in which doing so either is impossible for some reason or would endanger the well-being of officers or others. Officers should not delay in emergent circumstances to fulfill this obligation. But in many instances in which officers take action without warrants—such as when they approach an automobile fully expecting to request consent to search, or when they walk up to people on the street intending to conduct a Terry stop or frisk—there is time to state briefly the grounds for taking these actions. If there is time to narrate those circumstances on body cameras they should do so, even (or especially) if there not time to obtain a warrant.