5. SEARCHES WITHOUT WARRANT

0.    Frunz v. City of Tacoma, 468 F.3d 1141, 1142 (9th Cir. 2006).

0.    See Transcript of Trial at 20:24–21:2; 37:6–39:25, 40:16–17, 184:22–185:6, Frunz, 468 F.3d 1141 (No. 05-35302); Frunz, 468 F.3d at 1142.

0.    See Transcript of Trial at 19:14–17, 75:18–21, 76:13–15,76:18–77:12, 357:4–13, Frunz, 468 F.3d 1141 (No. 05-35302); Frunz, 468 F.3d at 1142–43.

0.    See Transcript of Trial at 185:9–11, 186:15–18, 187:2–12, 308:7–24, 338:10–15, 343:11–14, Frunz, 468 F.3d 1141 (No. 05-35302).

0.    Transcript of Trial at 190:22–191–25, 192:7–17, 193:10–194:2, Frunz, 468 F.3d 1141 (No. 05-35302).

0.    Transcript of Trial at 195:7–18, 197:18–25, Frunz, 468 F.3d 1141 (No. 05-35302).

0.    Frunz, 468 F.3d at 1146.

0.    Frunz, 468 F.3d at 1146.

0.    Frunz, 468 F.3d at 1144, 1147 (damages, “the citizens of Tacoma”); Transcript of Oral Argument at 11:09, Frunz, 468 F.3d 1141 (No. 05-35302) (“You had a jury and for me it sounded like the jury gave your clients a hug and kiss for what they did. Boy was this a parsimonious jury. You should have thanked them.”); Frunz v. City of Tacoma, 476 F.3d 661, 665 (9th Cir. 2007).

0.  Oren Bar-Gill and Barry Friedman, “Taking Warrants Seriously,” Nw. U. L. Rev. 106 (2012): 1664–66 (citing studies indicating police rarely obtain warrants in advance of searches); Richard Van Duizend et al., The Search Warrant Process: Preconceptions, Perceptions, Practices (1985), 17; Craig D. Uchida and Timothy S. Bynum, “Search Warrants, Motions to Suppress and ‘Lost Cases’: The Effects of the Exclusionary Rule in Seven Jurisdictions,” J. Crim. L. & Criminology 81 (1991): 1051; Jon B. Gould and Stephen D. Mastrofski, “Suspect Searches: Assessing Police Behavior Under the U.S. Constitution,” Criminology & Pub. Pol’y 3 (2004): 334 (“[I]t is notable that not a single search in the sample of 115 was conducted by warrant. Although search warrants are rare in other jurisdictions … the pattern in [the city being studied] appears to be exceptional.”). On warrantless entries of the home, see, for example, Mitchell v. City of Henderson, No. 13-01154, 2015 WL 427835, at *17 (D. Nev. Feb. 2, 2015) (denying defendants’ motion to dismiss plaintiffs’ § 1983 claims regarding police forcibly entering and searching their homes without a warrant where plaintiffs were home at the time of entry); Carlos Miller, “Watch New York Cops Force Way into Woman’s Home Without Warrant,” PINAC, Apr. 10, 2015, http://photographyisnotacrime.com/2015/04/watch-new-york-cops-force-way-into-womans-home-without-warrant/ (describing police officers forcing their way into a woman’s home in search of a felon who was not found; video footage was taken); “Video: Man Refuses to Let Cops Search House Without Warrant,” RT, Sept. 3, 2014, www.rt.com/usa/185084-homeowner-police-enter-warrant/.

0.  The Maltese Falcon (Warner Bros., 1941).

0.  Ex parte Jackson, 96 U.S. 727, 733 (1877).

0.  Johnson v. United States, 333 U.S. 10, 14 (1948).

0.  United States v. Lefkowitz, 285 U.S. 452, 465 (1932).

0.  See Bar-Gill and Friedman, “Taking Warrants Seriously,” supra note 10, at 1643 & 1643n136 (citing studies on accountability and belief perseverance); Linda Babcock et al., “Creating Convergence: Debiasing Biased Litigants,” Law & Soc. Inquiry 22 (1997): 918 (settlement). Similarly, deliberation, which requires individuals to convince each other, filters out bias, prejudice, and irrational motives. See Bar-Gill and Friedman, “Taking Warrants Seriously,” supra note 10, at 1643 & 1643 n137.

0.  Katz v. United States, 389 U.S. 347, 357 (1967).

0.  See Christopher Slobogin, “Why Liberals Should Chuck the Exclusionary Rule,” Ill. L. Rev. 1999: 375 (“[T]oday’s swiss cheese exclusionary rule is a mere shadow of what it could be.”).

0.  See, e.g., Frunz, 468 F.3d at 1145 (“In such exigent circumstances, the police are entitled to enter immediately, using all appropriate force.”).

0.  See Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Mich. L. Rev. 98 (1999): 628–34 (discussing three justifications for warrantless arrests at common law in 1791: when (1) the offense was committed/attempted in view of the officer; (2) the person arrested committed a felony; and (3) the officer had reasonable cause to believe arrested individual committed a known crime); People v. Chiagles, 237 N.Y. 193, 195 (1923) (Cardozo, J.) (“[T]here is one exception [to the Fourth Amendment] that has been established as firmly as the rule itself. The government may ‘search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.’” (quoting Weeks v. United States, 232 U.S. 383, 392 (1914))); id. at 196 (“The right goes back beyond doubt to the days of the hue and cry, when there was short shrift for the thief who was caught with the mainour, still in seisin of his crime.” (internal quotation marks omitted)).

0.  On quantifying the exceptions, see, for example, David C. Behar, “An Exception to an Exception: Officer Inadvertence as a Requirement to Plain View Seizures in the Computer Context,” U. Miami L. Rev. 66 (2012): 472 (“[T]he Court has also carved a vast number of exceptions to whether and when a warrant is required … [w]ith all these exceptions, one must wonder whether Fourth Amendment protections are a rule or an exception itself.”); Thomas Y. Davies, “The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment ‘Search and Seizure’ Doctrine,” J. Crim. L. & Criminology 100 (2010): 939 (“[Crime-control justices] have … expand[ed] law enforcement search powers by announcing a multitude of doctrinal limitations and exceptions that make the earlier protections largely meaningless in practice.”); California v. Acevedo, 500 U.S. 565, 582–83 (1991) (Scalia, J., concurring in judgment) (claiming twenty-two exceptions). On the exceptions themselves, see United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (approving an unwarranted search by Border Patrol at a checkpoint forty-three air miles from the nearest Mexican border); United States v. Biswell, 406 U.S. 311 (1972) (permitting a search of gun dealer’s locked storeroom as part of an authorized inspection did not require a warrant); Wyman v. James, 400 U.S. 309 (1971) (finding home visits prescribed by statute as condition for welfare assistance is not a search covered by the Fourth Amendment); New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (“[S]chool officials need not obtain a warrant before searching a student who is under their authority.”); United States v. Knights, 534 U.S. 112 (2001) (approving a warrantless search of probationer’s apartment); City of Ontario v. Quon, 560 U.S. 746 (2010) (permitting a warrantless search of a city employee’s city-issued cell phone); South Dakota v. Opperman, 428 U.S. 364 (1976) (finding an inventory search of defendant’s locked but impounded car reasonable for Fourth Amendment purposes); Carroll v. United States, 267 U.S. 312 (1925) (approving a warrantless search of a car); Acevedo, 500 U.S. 565 (holding police may conduct warrantless searches of containers in cars, where police have probable cause to search the car or container); Michigan v. Tyler, 436 U.S. 499 (1978) (permitting warrantless entry into a building to fight a fire and officers to remain in the building to investigate the fire).

0.  Cardwell v. Lewis, 417 U.S. 583, 587–88 (1974).

0.  See id.at 590 (explaining the automobile exception is due in part to the fact that (1) “[a car] travels through public thoroughfares where its occupants and contents are in plain view” and (2) “[a car’s] function is transportation and it seldom serves as one’s residence or the repository of personal effects”); United States v. Chadwick, 433 U.S. 1, 12–13 (1977) (arguing that reduced “automobile privacy” is due in part to the fact that “[a]ll states require vehicles to be registered and operators to be licensed”).

0.  U.S. Const. amend. IV.

0.  Joint Comm. on Continuing Legal Educ. of the Am. Law Inst. and the Am. Bar Ass’n, Trial Manual for the Defense of Criminal Cases (Preliminary Draft No. 1, Sept. 29, 1966), 28, quoted in Telford Taylor, Two Studies in Constitutional Interpretation (1969), 23 & 182n12.

0.  See Taylor, Two Studies in Constitutional Interpretation, supra note 24, at 21, 43; Akhil Reed Amar, “Fourth Amendment First Principles,” Harv. L. Rev. 107 (1994): 761.

0.  See Taylor, Two Studies in Constitutional Interpretation, supra note 24, at 41–43; Amar, “Fourth Amendment First Principles,” supra note 25, at 774, 778, 798.

0.  See William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009), 232–52 (discussing the use of search warrants in the colonies and noting their indiscriminate issuance); Leonard Levy, “Origins of the Fourth Amendment,” Pol. Sci. Q. 114 (1999): 92 (quoting “The Rights of the Colonies,” 1772, reprinted in The Bill of Rights: A Documentary History, ed. Bernard Schwartz (1971), 1:206) (Boston Town Meeting).

0.  Acevedo, 500 U.S. at 581 (Scalia, J., concurring in judgment).

0.  Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999) (citations omitted).

0.  United States v. Davis, 785 F. 3d 498, 516–17 (11th Cir. 2015) (cell site data searches); Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (post-arrest buccal swab); Reynolds v. City of Anchorage, 379 F. 3d 358, 367 (6th Cir. 2004) (search of juvenile in group home).

0.  See Amar, “Fourth Amendment First Principles,” supra note 25, at 772 & 772n54 (suppression of Wilkes and others); Levy, “Origins of the Fourth Amendment,” supra note 27, at 87 (“Wilkes and Liberty”); Akhil Reed Amar, “The Fourth Amendment, Boston, and the Writs of Assistance,” Suffolk U. L. Rev. 30 (1997): 65–66 (importance of the Wilkesite cases).

0.  George Rudé, Wilkes and Liberty: A Social Study of 1763 to 1774 (1962), xiii, 17–19.