Zealous Officers and Neutral Magistrates: The Rhetoric of the Fourth Amendment

30 Pages·2012·1.64 MB·English

by  Steinberg, David E.

1019
ZEALOUS OFFICERS AND NEUTRAL
MAGISTRATES: THE RHETORIC
OF THE FOURTH AMENDMENT
DAVID E. STEINBERGt
TABLE OF CONTENTS
INTRODUCTION .......................................... 1020
I. THE ORIGINAL UNDERSTANDING: A LIMITED
FOURTH AMENDMENT ........................... 1021
II. FOURTH AMENDMENT RHETORIC:
DANGEROUS LAW ENFORCEMENT,
IMPARTIAL MAGISTRATES ....................... 1023
A. THE PREMISE: RESPONSIBLE MAGISTRATES,
IRRESPONSIBLE COPS ............................. 1023
B. "UNBRIDLED DISCRETION" .. ........................ 1026
C. PLACING THE MAGISTRATE BETWEEN THE
POLICE AND CITIZENS ............................... 1027
D. THE "HURRIED JUDGMENT" OF LAW
ENFORCEMENT OFFICERS ............................ 1029
E. SUMMARY ........................................... 1030
III. THE REALITY OF JUDICIAL INVOLVEMENT:
LIMITED REVIEW AND EXPERIENCE ............ 1031
A. LIMITED REVIEW OF WARRANT APPLICATIONS ...... 1031
B. MAGISTRATE QUALIFICATIONS ..................... 1033
C. REVIEW ON APPEAL ................................. 1035
D. SUMMARY ........................................... 1037
IV. THE RISE OF POLICE PROFESSIONALISM ....... 1037
A. POLICE TRAINING ................................... 1038
B. POLICE REVIEW AND DISCIPLINE .................. 1041
V. THE EMERGING RHETORIC OF POLICE
RESPONSIBILITY .................................. 1042
CONCLUSION ............................................. 1045
t Professor, Thomas Jefferson School of Law. B.A., Northwestern University;
J.D., Stanford Law School. My thanks to the Thomas Jefferson School of Law, for gen-
erous research funding.
1020 CREIGHTON LAW REVIEW [Vol. 43
INTRODUCTION
Words matter. Language influences how we view legal issues.1
Through word choices, courts attempt to shape our approaches to legal
problems.
With respect to the Fourth Amendment,2 language certainly mat-
ters.3 Fourth Amendment doctrine repeatedly suggests that police of-
ficers are not trustworthy and are likely to abuse their discretion. As
a result, courts must intervene to protect citizens from law enforce-
ment. To make this distinction between courts and law enforcement,
judges describe law enforcement as "zealous officers" and describe
4
courts as "neutral magistrates."
In a variety of ways, Fourth Amendment opinions suggest this
contrast between neutral, detached, and principled magistrates on the
one hand, and zealous, competitive, and unrestrained law enforce-
ment officers on the other hand. Recently, the Supreme Court of the
United States invoked this comparison to invalidate a search and
seizure. In the recently decided Arizona v. Gant,5, the Court relied on
this rhetoric to invalidate a warrantless search of a car. According to
the Gant majority, the Fourth Amendment addresses "the concern
about giving police officers unbridled discretion to rummage at will
among a person's private effects."6
This Article suggests that the Court's distinction between "neu-
tral" magistrates and "zealous" police officers is seriously misleading.
The rhetoric does not account for the training and accountability of
law enforcement. Nor does this rhetoric acknowledge that some mag-
istrates lack training, and that warrants receive limited appellate
review.
Part I of this article reviews the limited Fourth Amendment envi-
sioned by the framers of the amendment. The Supreme Court's cur-
rent Fourth Amendment activism does not find support in the original
understanding of the amendment. Through the use of rhetoric, the
Court has attempted to create a broad role for judges in regulating
searches and seizures.
1. See, e.g., Laura E. Little, Hiding with Words: Obfuscation,A voidance, and Fed-
eral JurisdictionO pinions, 46 UCLA L. REV. 75, 80 (1998) (noting that "Supreme Court
Justices use rhetoric to construct and legitimize interpretations of the United States
Constitution"); Mary Ellen Maatman, Choosing Words and Creating Worlds: The Su-
preme Court's Rhetoric and Its Constitutive Effects on Employment DiscriminationL aw,
60 U. Prrr. L. REV. 1, 7 (1998) (judges use "rhetorical devices to prompt the conclusion
that the decision at hand is just and sensible").
2. U.S. CONST. amend. LV.
3. Id.
4. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948).
5. 129 S. Ct. 1710 (2009).
6. Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009).
2010] THE RHETORIC OF THE FOURTHA MENDMENT 1021
Part II examines the Supreme Court's rhetoric, which distin-
guishes between reliable magistrates and untrustworthy police of-
ficers. In describing magistrates, the Court's Fourth Amendment
opinions have used words such as "neutral," "impartial," "objective,"
and "deliberate." In contrast, the Court has described law enforce-
ment agents as "zealous" officers, who make "hurried judgments." Ac-
cording to the Court, only the magistrates who review warrant
applications can protect the public from law enforcement officers seek-
ing to violate privacy through their "unbridled discretion."
Part III questions the Court's unconditionally positive description
of the judicial officers who review warrants. Magistrates often receive
boilerplate warrant applications, which they routinely approve in a
matter of minutes. The Supreme Court has shown no inclination to
intervene, subjecting probable cause findings only to the most deferen-
tial review. Such minimal review is perhaps inevitable because some
magistrates have no formal legal training.
Part IV demonstrates that the Court's cynical portrayal of law en-
forcement officers is similarly misguided. The Court's rhetoric does
not recognize the rise of professional police departments. In these de-
partments, officers receive considerable Fourth Amendment training
and face discipline when search and seizure mistakes result in an ex-
clusion of evidence.
Part V identifies a few opinions suggesting a different rhetorical
approach to the Fourth Amendment. In these opinions, the Court has
recognized an officer's training and experience as positive factors. But
these few opinions remain isolated exceptions, with most Fourth
Amendment opinions continuing to describe law enforcement officers
as incompetent and dangerous.
I. THE ORIGINAL UNDERSTANDING: A LIMITED FOURTH
AMENDMENT.
Before examining the rhetoric of the Fourth Amendment,7 this
Article considers the very limited role for the amendment envisioned
by the framers - far more limited than the scope of the amendment
today. Because the text and history do not support expansive inter-
pretations of the Fourth Amendment, the Supreme Court of the
United States has needed another source for its authority. The Court
has turned to rhetoric.
The Fourth Amendment conceived by the framers was a narrow
document. The language of the amendment does not explicitly invoke
broad judicial involvement. The amendment prohibits "unreasonable
7. U.S. CONST. amend. IV.
1022 CREIGHTON LAW REVIEW [Vol. 43
searches and seizures,"s without offering any definition for the term
"unreasonable." The amendment also provides that "no Warrants
shall issue, but upon probable cause."9 Notably, the amendment does
not mandate that a neutral and detached magistrate must issue the
warrant, although modern Fourth Amendment decisions regularly
emphasize such a requirement.10 This omission is particularly note-
worthy, because warrants in the eighteenth century sometimes were
not issued by judicial officers.11 In short, the language of the Fourth
Amendment did not explicitly mandate wide ranging judicial regula-
tion of searches and seizures.
Beyond the plain language, additional historical evidence sug-
gests the framers intended that the Fourth Amendment would be a
narrow document. First, the Fourth Amendment applied only to the
federal government, not to the states.12 Yet in early America, the
overwhelming majority of criminal searches and prosecutions took
place under state law.13 Given the very limited scope of federal law
enforcement, the Fourth Amendment was relevant only on rare
occasions. 14
Even at the federal level, the framers did not intend that the
Fourth Amendment would regulate a broad variety of searches and
seizures. As I have written elsewhere, the framers "were focused on a
single, narrow problem-physical invasions of houses by government
agents."15 The framers sought to address this problem with a bright
line rule: "Before entering a house, law enforcement officers typically
would need to obtain a specific warrant."16 With respect to other
8. Id.
9. Id.
10. See, e.g., Johnson v. United States, 333 U.S. 10 13-14 (1948). For further dis-
cussion of the use of rhetoric in Johnson, see infra notes 22-40 and accompanying text.
11. In the John Wilkes cases of 1763, a general warrant was issued by the English
Secretary of State. See William J. Cuddihy, The Fourth Amendment: Origins and Origi-
nal Meaning 886-87 (1990) (unpublished Ph.D. dissertation, Claremont Graduate
School) (on file with author). Conversely, in Paxton's case of 1755, a customs agent
received a writ of assistance from the Superior Court in Boston. Id. at 760-61.
12. See, e.g., Smith v. Maryland, 59 U.S. 71, 76 (1855) (rejecting a Fourth Amend-
ment challenge to a Maryland state statute, because the Fourth Amendment applied
only to the federal government).
13. See, e.g., Sara Sun Beale, FederalizingC rime: Assessing the Impact on the Fed-
eral Courts, 543 ANNALS Am.A cAD. POL. & Soc. Sci. 39, 40 (1996) (discussing the very
limited scope of early federal criminal law).
14. See Thomas J. Maroney, Fifty Years of Federalizationo f CriminalL aw: Sound-
ing the Alarm or Crying Wolf?, 50 SYRACUSE L. REV. 1317, 1319 (2000) (early federal
criminal law specified only seventeen offenses).
15. David E. Steinberg, An Original Misunderstanding:A khil Amar and Fourth
Amendment History, 42 SAN DIEGO L. REV. 227, 230 (2005).
16. Id.
2010] THE RHETORIC OF THE FOURTH AMENDMENT 1023
types of searches and seizures, the Fourth Amendment was simply
inapplicable.17
The modern Fourth Amendment is nothing like the framers' origi-
nal conception of the amendment. Instead, the Supreme Court has
applied the amendment to a wide variety of searches, many of which
have nothing to do with a physical invasion of a house. For example,
the Court has applied the Fourth Amendment in cases involving traf-
fic checkpoints,18 random drug tests,19 and searches at schools.20
Neither the text nor the history of the Fourth Amendment autho-
rizes broad judicial regulation of searches and seizures. For the judi-
cial branch to exercise such power, judges must find another source
for this authority. As a result, the Supreme Court has turned to rhet-
oric.21 Time and again, the language of Fourth Amendment opinions
describes a contrast between neutral and objective magistrates, as op-
posed to zealous and overreaching law enforcement officers.
II. FOURTH AMENDMENT RHETORIC: DANGEROUS LAW
ENFORCEMENT, IMPARTIAL MAGISTRATES.
A. THE PREMISE: RESPONSIBLE MAGISTRATES, IRRESPONSIBLE COPS.
The Supreme Court of the United States rhetoric describing judi-
cial integrity and abusive police officers has deep roots in Fourth
Amendment22 doctrine. A particularly clear statement of this concern
appeared as early as 1948, in a majority opinion by Justice Louis
Brandeis. In Johnson v. United States,23 Justice Brandeis wrote:
The point of the Fourth Amendment, which often is not
grasped by zealous officers, is not that it denies law enforce-
ment the support of the usual inferences which reasonable
17. Id. See also David E. Steinberg, The Original Understandingo f Unreasonable
Searches and Seizures, 56 FLA. L. REV. 1051, 1053 (2004) ("[Tihe Fourth Amendment
was intended to proscribe only a single, discrete activity - physical searches of houses
pursuant to a general warrant, or no warrant at all.").
18. Compare City of Indianapolis v. Edmond, 531 U.S. 32, 41-44 (2000) (a random
narcotics checkpoint violated the Fourth Amendment), with Michigan Dep't of State
Police v. Sitz, 496 U.S. 444, 451 (1990) (a random narcotics checkpoint did not violate
the Fourth Amendment).
19. Compare Bd. ofEduc. v. Earls, 536 U.S. 822, 826 (2002) (random drug tests of
students who participated in extracurricular athletics did not violate the Fourth
Amendment), with Chandler v. Miller, 520 U.S. 305, 313-23 (1997) (random drug test-
ing of candidates for state office violated the Fourth Amendment).
20. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985) (holding that a high
school vice principal could search a student's purse, when the vice principal had "rea-
sonable grounds" to believe that the student had violated a school rule).
21. See George R. Nock, The Point of the Fourth Amendment and the Myth of Mag-
isterial Discretion, 23 CONN. L. REV. 1, 2-3 (Fourth Amendment rhetoric was developed
by "the Court's liberals, who used it to build an expanded warrant-preference rule.").
22. U.S. CONST. amend. IV.
23. 333 U.S. 10 (1948).
1024 CREIGHTON LAW REVIEW [Vol. 43
men draw from evidence. Its protection consists in requiring
that those inferences be drawn by a neutral and detached
magistrate instead of being judged by the officer engaged in
the often competitive enterprise of ferreting out crime.24
Justice Brandeis' statement in Johnson is one of the most com-
monly quoted descriptions of the principles that resulted in the Fourth
Amendment.25 The statement has been cited in opinions including
California v. Acevedo,26 Payton v. New York,27 and many others.
At first glance, Justice Brandeis' statement may seem innocuous.
A closer look, however, indicates powerful judgments about law en-
forcement officers and judicial magistrates.
Justice Brandeis' statement began by asserting that the point of
the Fourth Amendment "often is not grasped by zealous officers." Of-
ficers who have not "grasped" the point of the Fourth Amendment are
presumably dumb, uneducated, or simply consumed with making ar-
rests and putting people in jail.
Justice Brandeis' description of these officers with the word "zeal-
ous" further suggested a single-minded commitment to arrests and in-
carceration. The word "zealous" derives from the zealots, a first
century Jewish sect that controlled Jerusalem for a short time. The
zealots typically are portrayed as fanatical ideologues. For example,
Webster's New Collegiate Dictionary described the zealots as "a fanati-
cal sect arising in Judea during the first century A.D."28 Historians
also have described the zealots as the first terrorists. The group at-
tempted to achieve political goals through random assassinations of
Roman officials and Jews, who collaborated with the Romans.29
If we accept Justice Brandeis' characterization of law enforcement
officers as "zealous," what are they zealous or fanatical about? Ac-
cording to Justice Brandeis, the zealous behavior related to "the often
competitive enterprise of ferreting out crime." This statement sug-
gested that law enforcement officers approach their work much like a
capitalist business. But instead of an obsession with maximizing prof-
its, the officers are obsessed with maximizing arrests.
Justice Brandeis contrasted this entirely unflattering image of
the law enforcement officer with the "neutral magistrate," - the judi-
24. Johnson v. United States, 333 U.S. 10, 13-14 (1948).
25. Nock, supra note 21, at 2 (describing Justice Jackson's statement as "one of the
most frequently cited statements in Supreme Court history").
26. 500 U.S. 565 (1991).
27. 445 U.S. 573 (1980).
28. See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1370 (1988).
29. See FLAvIus JosEpHus, Wars of the Jews, in THE COMPLETE WORKS OF FLAvIUs
JOSEPHUS 526-27 (William Whiston trans., Kregel Pub. 1974); Parvez Ahm, Terror in
the Name of Islam - Unholy War, Not Jihad, 39 CASE W. RES. J. OF INT'L L. 759, 784
(2007-08).
2010] THE RHETORIC OF THE FOURTH AMENDMENT 1025
cial officer authorizing searches. Justice Brandeis' choice of the word
"magistrate" is particularly remarkable. The word "magistrate" dates
from the Roman Republic. Magistrates were the highest ranking ex-
ecutives in the Roman Republic, and the consuls were the highest
ranking magistrates. Each year in the republic, two consuls were
elected. The consuls had authority over all civilian and military mat-
ters.30 In addition to their executive duties, magistrates exercised ju-
31
dicial powers.
Rather than using the term "magistrate," a more accurate
description of the judicial officer who issued warrants would have
been the term "justice of the peace." When the framers drafted the
Fourth Amendment, they probably envisioned that justices of the
peace would issue warrants. Professor Fabio Arcila wrote that in
early America, justices of the peace were "the non-elite judges who
actually issued search warrants."32 Yet Justice Brandeis used the
term "magistrate," and not "justice of the peace." Presumably, the
term "justice of the peace" did not sound nearly as majestic - or supe-
rior - as the term magistrate.
Having classified the person issuing the warrant as a "magis-
trate," the Court then typically describes the magistrate with an ad-
jective. The adjective always describes the magistrate as thoughtful
and objective - terms that are never used for law enforcement officers.
The adjectives that Justice Brandeis used to describe the magistrate
were "neutral" and "detached."33 Other terms the Justices have used
include "impartial magistrate,"34 "objective magistrate,"35 and the "in-
formed and deliberate determinations of magistrates."36
The contrast between "impartial" judicial magistrates and (pre-
sumably partial) law enforcement officers appears throughout the
Court's Fourth Amendment decisions. In Wong Sun v. United
30. See, e.g., ROBERT BYRD, THE SENATE OF THE RoMAN REPUBLIC 20 (1995). See
also Louis J. Sirico, Jr., The Federalista nd the Lessons of Rome, 75 Miss. L. J. 431, 455
(2006) (noting the two-consul structure).
31. Scott D. Gerber, The Court, the Constitution,a nd the History of Ideas, 61 VAND.
L. REV. 1067, 1097 (2008). ("The consuls, along with lesser magistrates appointed by
them, exercised the majority of the judicial functions.").
32. Fabio Arcila, Jr., The Framers' Search Power: The Misunderstood Statutory
History of Suspicion and Probable Cause, 50 B.C. L. REV. 363, 376 (2009). See also
Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law His-
tory of Suspicion and ProbableC ause, 10 U. PA. J. CONST. L. 1, 24-36 (2007) (justices of
the peace issued warrants during the framing era).
33. Johnson, 333 U.S. at 13-14.
34. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 282 (1973) (Marshall, J.,
dissenting); Griffin v. Wisconsin, 483 U.S. 868, 876 (1987).
35. Mincey v. Arizona, 437 U.S. 385, 395 (1978).
36. See, e.g., Georgia v. Randolph 547 U.S. 103, 117 (2006); United States v. Lefko-
witz, 285 U.S. 452, 464 (1932).
1026 CREIGHTON LAW REVIEW [Vol. 43
States,37 the Court lauded the arrest warrant procedure, which
"serves to insure that the deliberate, impartial judgment of a judicial
officer will be interposed between the citizen and the police."38 In
Katz v. United States,39 the Court struck down a warrantless wiretap,
because the officers had not been required "to present their estimate
of probable cause for detached scrutiny by a neutral magistrate."40
In cases subsequent to Johnson, the Court has added more details
to its negative image of law enforcement officers. In executing
searches, officers possess "unbridled discretion" and make "hurried
judgments." Because law enforcement officers are so untrustworthy,
the Fourth Amendment protected citizens when it "interposed a mag-
istrate between the citizen and the police." The Court's negative
terms for law enforcement officers receive further discussion below.
B. "UNBRIDLED DISCRETION."
Concerns about police officer discretion are particularly common
in Fourth Amendment decisions issued by the Supreme Court of the
United States. The mere fact that officers exercised discretion is un-
remarkable. Discretion is an inherent part of any job - including the
job of a Supreme Court Justice. But in Fourth Amendment cases, the
Justices frequently suggest that police officers routinely abuse their
discretion - unless they receive heavy judicial oversight.
Rather than using the term "abuse of discretion," the Justices
tend to use "unbridled discretion" as a substitute. A clear statement
of this abuse of discretion concern occurred in Arizona v. Gant,41 cited
at the outset of this article. According to the Gant decision, the
Fourth Amendment addresses "the concern about giving police officers
unbridled discretion to rummage at will among a person's private
effects."42
Justice William J. Brennan's opinions demonstrated a particular
fondness for hypothetical fears about law enforcement's abuse of dis-
cretion. In a dissent that opposed a warrantless house search by
American law enforcement officers in Mexico, Justice Brennan as-
serted: "The need to protect those suspected of criminal activity from
the unbridled discretion of investigating officers is no less important
abroad than at home."43 This echoed a similar statement authored by
37. 371 U.S. 471 (1963).
38. Wong Sun v. United States, 371 U.S. 471, 481-82 (1963).
39. 389 U.S. 347 (1967).
40. Katz v. United States, 389 U.S. 347, 356 (1967).
41. 129 S. Ct. 1710 (2009).
42. Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009).
43. United States v. Verdugo-Urquidez, 494 U.S. 259, 296 (1990) (Brennan, J.,
dissenting).
2010] THE RHETORIC OF THE FOURTH AMENDMENT 1027
Justice Brennan years earlier. In Wong Sun v. United States,44 the
Court struck down a warrantless arrest in a suspect's home. Accord-
ing to Justice Brennan's majority opinion: "To hold that an officer may
act in his own, unchecked discretion upon information too vague and
from too untested a source to permit a judicial officer to accept it as
probable cause for an arrest warrant," would subvert a "fundamental
policy" underlying the Fourth Amendment.45 In this Wong Sun pas-
sage, Justice Brennan expressed his clear antipathy to situations
where a law enforcement agent might act on his own "unchecked dis-
cretion" without oversight from a "judicial officer."
In suggesting an abuse of discretion, the Justices failed to recog-
nize that in Wong Sun and Gant, the officers possessed sound argu-
ments that their conduct was lawful. In cases where the "unbridled
discretion" language appears, at least some members of the Supreme
Court typically voted to uphold the search or seizure. For example, in
Wong Sun, four justices dissented, concluding that the arrest did not
violate the Constitution.46 In Gant, four justices again dissented, con-
cluding that the warrantless car search did not violate the Fourth
47
Amendment.
In Wong Sun and Gant, a Court majority interpreted the Fourth
Amendment differently than did the law enforcement officers. How-
ever, to characterize the officers' conduct as an abuse of discretion - or
"unbridled discretion" - badly misrepresents the officers' conduct and
the applicable law.
C. PLACING THE MAGISTRATE BETWEEN THE POLICE AND CITIZENS.
According to statements made by the Supreme Court of the
United States, the Fourth Amendment places the magistrate between
the police and the people. These opinions suggest that police officers
seek to overrun individual liberties in pursuit of arrests and imprison-
ment. Only the neutral magistrate - the champions of privacy and
liberty - can protect the people from police abuse.
An early statement of this concern appeared in McDonald v.
United States.48 Writing for the majority, Justice William 0. Douglas
asserted:
Absent some grave emergency, the Fourth Amendment has
interposed a magistrate between the citizen and the police.
This was done not to shield criminals nor to make the home a
44. 371 U.S. 471 (1963).
45. Wong Sun v. United States, 371 U.S. 471, 482 (1963).
46. Wong Sun, 371 U.S. at 498.
47. Gant, 129 S. Ct. at 1726 (Alito, J., dissenting).
48. 335 U.S. 451 (1948).
1028 CREIGHTON LAW REVIEW [Vol. 43
safe haven for illegal activities. It was done so that an objec-
tive mind might weigh the need to invade that privacy in or-
der to enforce the law.49
Justice Douglas continued that only magistrates - and not the police -
could be trusted to protect individual liberties. Justice Douglas wrote:
"Power is a heady thing; and history shows that the police acting on
their own cannot be trusted. And so the Constitution requires a magis-
trate to pass on the desires of the police before they violate the privacy
50
of the home."
In subsequent cases, the Court regularly used Justice Douglas'
distinction. In Groh v. Ramirez,51 the Court struck down a house
search pursuant to a warrant because the warrant did not specify the
persons or things to be seized.52 The government argued that the
search was reasonable. The government noted that the warrant appli-
cation contained a very specific request to search for firearms, and the
application also contained a detailed affidavit that supported the ap-
plication. In addition, federal agents conducted a narrow search con-
sistent with the warrant application.53 The Court concluded that
even though the federal agents "acted with restraint in conducting the
search,"54 the search was invalid because a magistrate did not set
those limits.55 In reaching this result, the Court relied explicitly on
the need to interpose a magistrate between the police and citizens.56
In Chimel v. California5,7 the Court also cited the statement from
McDonald. In Chimel, the Justices held that a warrantless house
search conducted incident to an arrest violated the Fourth Amend-
ment.58 In striking down the warrantless search, the Justices quoted
the McDonald passage regarding the need to interpose a magistrate
between citizens and law enforcement.59
Justice Douglas' statement from McDonald contains one of the
most explicit comparisons between law enforcement officers and judi-
cial officers, with law enforcement portrayed in a negative light. Jus-
tice Douglas wrote that law enforcement officers "acting on their own
cannot be trusted." Further, the highly suggestive language in Justice
49. McDonald v. United States, 335 U.S. 451, 455 (1948).
50. McDonald, 335 U.S. at 456.
51. 540 U.S. 551 (2004).
52. Groh v. Ramirez, 540 U.S. 551, 557-58 (2004). See also U.S. CONST. amend. IV
(courts only may issue warrants "particularly describing the place to be searched, and
the persons or things to be seized").
53. Groh, 540 U.S. at 554-55, 558.
54. Id. at 561.
55. Id. at 559-63.
56. Id. at 560.
57. 395 U.S. 752 (1969).
58. Chimel v. California, 395 U.S. 752, 768 (1969).
59. Chimel, 395 U.S. at 761.