Timothy P. O'Neill
Chicago Daily Law Bulletin
Copyright 2004 Law Bulletin Publishing Company
March 12, 2004
'Two Ideas' a lonely camp; 'One Idea' a majority
Don't worry if you missed the recent U.S. Supreme Court decision in Groh v. Ramirez, No. 02-811 (Feb. 24). The New York Times gave it a scant paragraph and most other news sources ignored it altogether.
Yet Groh is a significant case dealing with profound questions concerning the basic meaning of the Fourth Amendment. It demands serious attention.
First let's look at the text of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
You can divide the Fourth Amendment into roughly two clauses. The first half is the "unreasonableness clause" and the second half is the "warrant clause."
What is the relationship between these two clauses? That is a matter of some dispute.
One way to read the Fourth Amendment is to see it as "One Idea." The two clauses express an identity: a search and seizure can, as a general rule, be reasonable only if they are supported by a warrant and probable cause. This is the most frequent approach taken by the U.S. Supreme Court over the past 40 years. See Katz v. U.S., 389 U.S. 347, 357 (1967); Payton v. New York, 445 U.S. 573, 583 (1980).
But there is a second, very different way, of reading the Fourth Amendment. This way sees the two clauses as expressing "Two Ideas." According to this interpretation, the first idea is that all searches and seizures must be "reasonable." But there is a second, separate idea -- if you happen to use a warrant, it must be supported by an oath, probable cause, and particularly describe the things to be searched and seized.
This interpretation sees no obvious relationship between the two clauses. It views "reasonableness" as the touchstone for all inquiries concerning the constitutionality of searches and seizures. This interpretation holds that a warrant may never even be necessary to make a search and seizure reasonable. Rather, the warrant clause exists only to set limits on when and how the government can obtain a warrant.
Whether you choose the One Idea theory or Two Ideas theory can have a significant effect on the outcome of a Fourth Amendment case.
In Groh v. Ramirez, an agent with the Bureau of Alcohol, Tobacco and Firearms, Jeff Groh prepared and signed an affidavit to obtain a warrant to search Joseph R. Ramirez's Montana ranch. The affidavit described in detail what weapons and explosives he expected to find. Groh also prepared the warrant form itself. Yet he made a mistake: under the section that called for the description of the items to be seized, he inadvertently typed a description of the house that was to be searched. Moreover, the warrant form failed to incorporate by reference the itemized list included in the detailed affidavit.
The subsequent search uncovered no illegal weapons of any kind. Ramirez subsequently filed a lawsuit under the Civil Rights Act, 42 U.S.C. sec1983, alleging a violation of his Fourth Amendment rights.
The District Court found no Fourth Amendment violation. The 9th U.S. Circuit Court of Appeals, however, not only found that the warrant was invalid under the Fourth Amendment but also found the violation to be so plain that Groh was precluded from claiming qualified immunity.
The Supreme Court affirmed in a 5-4 decision. Justice John Paul Stevens' majority opinion is a textbook example of One Idea reasoning. It can be reduced to four steps. First, the opinion held that the lack of particularity in the warrant made it "plainly invalid."
Second, because the invalid warrant was so "obviously deficient," the search must be regarded as "warrantless" under the Fourth Amendment.
Third, a warrantless search of a house is considered "presumptively unreasonable" under the Fourth Amendment.
And, fourth, the search thus violated the Fourth Amendment.
Compare this to the Two Ideas reasoning of the dissent written by Justice Clarence Thomas and joined by Justice Antonin Scalia. It begins by noting that neither clause of the Fourth Amendment "explicitly requires" a warrant in any situation. It concedes that the court has often stated that "warrantless searches are presumptively unreasonable," but notes the plethora of exceptions to this rule. Thomas concludes that, "Our cases stand for the illuminating proposition that warrantless searches are per se unreasonable, except, of course, when they are not."
Thomas contends that whether the warrant clause has been violated and whether a search is ultimately found "unreasonable" under the Fourth Amendment should always be two separate inquiries. Yet the majority opinion, using the One Idea theory, erroneously conflates the inquiries. Thomas argues that a warrant that does not pass muster for a lack of particularity may nonetheless be "reasonable" and thus constitutional under the Fourth Amendment.
In this case, the flaw in the warrant was simply a mistake in preparing the warrant; the affidavit presented to the magistrate contained all the information that was necessary to provide "particularity." Thomas characterizes this as a technical defect that should not result in the search being found unreasonable under the Fourth Amendment.
Groh is significant for several reasons. First, it shows that the Supreme Court still contains a solid majority of justices who support the One Idea reading of the Fourth Amendment. Stevens' majority opinion -- holding both that there was a Fourth Amendment violation and that the ATF agent was not entitled to qualified immunity -- was joined by Justices Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. In addition, Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy agreed with the majority that the Fourth Amendment had been violated, but merely disagreed on the qualified immunity issue.
Thus, Thomas and Scalia are alone in their Two Idea reading of the Fourth Amendment.
Second, Groh is significant in that Rehnquist pointedly refused to join Thomas and Scalia in their Two Ideas analysis. In the past he had shown some proclivities in that direction, but Groh puts that speculation to rest.
The defense bar should be very pleased with Groh. Its support of the One Idea framework means that the court will continue to find that warrant clause violations will result in subsequent searches and seizures being found presumptively unreasonable and thus violations of the Fourth Amendment. Groh shows that the One Idea theory is alive and well on the Supreme Court.
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