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Article Excerpt
I. INTRODUCTION
The reasonable person has long been a fixture of this country's legal landscape, figuring most prominently in the law of torts but also in many other arenas, including substantive criminal law, (1) employment discrimination, (2) securities fraud, (3) and constitutional tort litigation. (4) Originally identified with the reasonable man, the standard has been hailed as the "personification of a community ideal of human behavior," (5) which requires not only that "every man should get as near as he can to the best conduct possible for him," but also that he "come up to a certain height." (6) Its detractors, on the other hand, have described the standard as "vague[]" (7) and "a palpable fiction." (8) Even after the reasonable man was replaced by the reasonable person, the standard continued to be surrounded with controversy, as critics have called for a more subjective measure of reasonableness, characterizing the reasonable person as a "legal abstraction[] [that] hide[s] [and] perpetuate[s] ... social inequities," (9) and a "naive" construction that "produces distorted ... rules and ignores the real world." (10)
This whole controversy has, for the most part, passed the Supreme Court's criminal procedure jurisprudence by. The Court was recently given an opportunity to join the fray in Yarborough v. Alvarado, (11) where it was asked to apply the Miranda definition of custody--a standard focused on the reasonable person in the defendant's position (12)--to a seventeen-year-old suspect who had no prior experience with the criminal justice system. (13) Instead of contributing meaningfully to the debate, the Court made the simplistic suggestion (contrary to the overwhelming weight of lower court authority (14)) that the suspect's age might not be relevant because "the custody inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's individual characteristics--including his age--could be viewed as creating a subjective inquiry." (15)
In fact, the Supreme Court's criminal procedure jurisprudence is even further removed from the current debates surrounding the reasonable person standard because the Court tends to shift opportunistically from case to case between subjective and objective standards and between whose point of view--the police officer's or the defendant's--it considers controlling. In making this claim, I examine the Supreme Court's Fourth Amendment search and seizure opinions as well as the Court's rulings on the admissibility of confessions (based on the Fifth Amendment interests protected by Miranda, the Sixth Amendment right to counsel, and the due process voluntariness test).
In its search and seizure decisions, the Supreme Court emphasizes the exclusionary rule's deterrent function, suggesting that the Fourth Amendment's primary purpose is to deter unconstitutional police behavior, and therefore focusing on the reasonable police officer. (16) By contrast, the Court has indicated that the familiar Miranda warnings were designed to dispel the inherent coerciveness of custodial interrogation, and therefore the controlling perspective is that of the suspect, frequently the reasonable person in her position. (17) The purpose of the Sixth Amendment right to counsel, on the other hand, is to protect the integrity of the adversary process, and the Supreme Court has therefore examined the subjective intent of the police in ruling on Sixth Amendment challenges to confessions. (18) Finally, the reach of the due process ban on involuntary confessions has traditionally turned primarily on the subjective perspective of the suspect; nevertheless, the Court has raised the notion of deterrence in this context as well, requiring evidence of overreaching on the part of the police. (19) Despite these generalizations, the Court has not adhered to a single approach in any of these areas, but instead has shifted between objective and subjective standards and between the perspective of the defendant and that of the police officer.
In sketching out my claims, Part II discusses the Supreme Court's Fourth Amendment jurisprudence, (20) and Part III analyzes the confession cases. (21) In each area, I find shifts in perspective that cannot be explained by the purposes the Court has told us underlie the particular constitutional provision at issue. Part IV examines the possibility that the inconsistencies described in the previous two sections might be attributable, at least in part, to the Court's views on the relative strengths and weaknesses of subjective and objective tests. (22) After considering the comments the Court has made about those tests in its criminal procedure rulings, however, I conclude that the general attributes of subjective and objective standards cannot account for the divergent perspectives found in the cases. Part V then addresses the Court's opinion in Yarborough v. Alvarado and the propriety of incorporating an individual's subjective characteristics into the reasonable person standard, analyzing the question of age that the Court faced in Alvarado as well as the issues of race that pervade our criminal justice system. (23)
In the end, I do not advocate that the Court choose one perspective for all criminal procedure cases or even necessarily for all cases interpreting a particular constitutional provision. (24) What I do maintain, however, is that the Court should adopt a principled, consistent approach to the question of perspective, based on the interests a particular constitutional protection is designed to further. Taking the Court at its word as to what those purposes are leads me to the following conclusions.
First, those constitutional provisions that are purportedly designed to deter abusive police practices should focus on the party to be deterred--the police. Given the Court's emphasis on deterrence in the Fourth Amendment context, most of the search and seizure cases clearly fall into this category. The Sixth Amendment confession cases, which are aimed at preserving the adversary process--i.e., ensuring that the police do not act to prejudice the defendant's right to a fair trial--likewise belong here. If the Court is genuinely interested in encouraging proper police behavior in these areas, deterrence theory suggests the importance of both subjective and objective considerations. Thus, suppression motions raising Fourth Amendment claims or challenging the admissibility of confessions on Sixth Amendment grounds should be granted in cases where the police either acted in subjective bad faith or failed to satisfy objective standards of reasonable police behavior.
Second, the Supreme Court opinions interpreting constitutional doctrines aimed at promoting voluntary decisionmaking and/or dispelling coercion--for example, the Miranda and voluntariness due process cases, the Fourth Amendment rulings governing the consent search exception, and the decisions involving a suspect's waiver of her constitutional protections--are harder to categorize because the Court has not been consistent even in identifying the basic premise underlying these doctrines. Although the terms "involuntary" and "coerced" may be "interchangeabl[e]," (25) they arguably carry "subtly different" connotations, (26) and in fact the Court has used them in two conflicting ways. On the one hand, the Court has at times indicated that the central purpose here is to preserve a criminal defendant's right to make a free and unconstrained choice. This line of reasoning--articulating what I call the "consent model"--suggests that the Court should focus on the defendant's perspective, applying a subjective standard and examining the decision made by the particular defendant to ensure that it was truly voluntary. The Court may prefer an objective "reasonable defendant" standard in some cases, in the interest of ensuring that the reach of constitutional rights "does not vary with the state of mind of the particular individual," (27) but the emphasis should remain on the defendant's point of view.
On the other hand, the Court has also suggested that these constitutional doctrines are really aimed at preventing the police from coercing defendants. This rationale--what I call the "coercion model"--suggests that these rules are designed to regulate police behavior and specifically to deter the police from using improperly coercive tactics. In that sense, they are indistinguishable from the deterrence-based Fourth Amendment and Sixth Amendment doctrines. Under this model, then, the focus should instead be on the police, again taking into account both subjective and objective considerations in the interest of maximizing deterrence.
In short, while the Court has articulated various functions that each of the constitutional provisions governing police practices is meant to serve, its choice of perspective in its criminal procedure rulings has fluctuated widely in ways that undermine the interests it purports to be furthering. Until the Court takes the preliminary step of adopting a principled approach to the question of perspective, tied to the purpose underlying the particular constitutional guarantee it is interpreting, it cannot tackle the more difficult issues that surround the contemporary debate about the reasonable person standard. Simplistic decisions like Yarborough v. Alvarado are the inevitable result.
II. THE SEARCH AND SEIZURE CASES
A. INTRODUCTION: THE PURPOSES OF THE FOURTH AMENDMENT
Over the past several decades, the Supreme Court has identified deterrence as the primary interest served by the Fourth Amendment's prohibition of unreasonable searches and seizures. As the Court remarked succinctly in United States v. Leon, "[T]he exclusionary rule is designed to deter police misconduct." (28) Given that purpose, the Court has reasoned that the focus of Fourth Amendment jurisprudence should be on the objectively reasonable police officer. Again, to quote Leon, the exclusionary rule "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." (29)
Accepting deterrence as the starting point, the Court may be fight that we cannot hope to deter objectively reasonable behavior--although that point is certainly not uncontroversial. (30) Nevertheless, it does not follow, as the Court has been wont to say (though by no means consistently), that a police officer's subjective intent is irrelevant and a purely objective standard is defensible. In fact, given the Court's emphasis on the exclusionary rule's deterrent function, the opinions in which it refuses to consider police officers' subjective motivations (31) seem somewhat counterintuitive. Despite the Leon Court's assertion that "'[g]rounding [Fourth Amendment doctrine] in objective reasonableness ... retains the value of the exclusionary rule as an incentive'" for the police to comply with constitutional dictates, (32) criminal law teaches us that deterrence is easier to achieve when an individual acts with subjective bad faith than when her actions fail to satisfy an objective standard of reasonableness. (33) Even the Court's opinion in Leon quotes approvingly from prior rulings that seem to acknowledge as much: "'The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct.'" (34)
Thus, if the Court is really serious about deterring Fourth Amendment violations, it should continue to focus on the perspective of the police--but it should require that evidence be suppressed in any case where the police either subjectively acted in bad faith or failed to satisfy an objective standard of reasonable police behavior. The lone exception may come in the consent search context, where the consent model, as contrasted with the coercion model, calls for making the particular defendant's subjective point of view controlling. (35)
An examination of the Supreme Court's search and seizure opinions reveals, however, wide variations in the Court's use of perspective. A summary in table form of the Court's choice of perspective in some key Fourth Amendment areas, though somewhat oversimplified, looks like this:
Table 1 Search and Seizure Cases Police Officer Defendant Objective Probable Cause/Reasonable Definition of "Seizure" Suspicion Good Faith Exception Excessive Force Consent: Apparent Authority Consent: Scope of Consent Subjective Administrative Searches Consent: Voluntariness Scope of Stop & Frisk Fruits of the Poisonous Tree: Attenuation Exception
As discussed below, this disparity works to undermine the Court's purported interest in encouraging proper police behavior.
B. OBJECTIVE (POLICE OFFICER)
As noted above, the Supreme Court's opinion in United States v. Leon emphasized the deterrent function of the exclusionary rule, adopting the perspective of the reasonable police officer. Thus, when Leon created the so-called "good faith" exception to the exclusionary rule, it defined the exception in objective terms, refusing to suppress evidence in circumstances where the police acted in reasonable reliance on a search warrant that turned out to have been issued erroneously without the requisite probable cause. (36)
This focus on the reasonable police officer can be seen in a number of other Fourth Amendment decisions. In articulating the quantum of suspicion needed to justify a Fourth Amendment intrusion (whether the probable cause required to search or the reasonable suspicion needed to stop), for example, the Court has instructed that the relevant inquiry is whether the "historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause." (37) Likewise, in ascertaining whether the police used excessive force in making an arrest or investigatory stop, the Court indicated in Graham v. Connor that "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer"--that is, whether the officers' use of force was "'objectively reasonable'" given "the facts and circumstances confronting them," irrespective of "their underlying intent or motivation." (38)
In Whren v. United States, however, the Court unanimously rejected the defendants' proposed "reasonable police officer" standard--i.e., that "the Fourth Amendment test for traffic stops should be ... whether a police officer, acting reasonably, would have made the stop for the reason given"--and held instead that a traffic stop is reasonable for constitutional purposes so long as it was based on probable cause. (39) In so doing, the Court spoke disparagingly about the whole notion of objective standards, referring to them as "exercise[s]" in "virtual subjectivity" that call for "speculati[on] about the hypothetical reaction of a hypothetical constable." (40) "Indeed," the Whren Court noted, "it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a 'reasonable officer' would have been moved to act upon the traffic violation." (41)
The Court's opinion in Whren likewise rejected as irrelevant to the Fourth Amendment analysis any inquiry into the subjective motivations of the law enforcement officials who stopped the defendants' vehicle. Although the defendants made a very plausible argument that the stop was pretextual, (42) the Court simply responded that the Fourth Amendment's "concern with 'reasonableness'" permits certain law enforcement actions "whatever the subjective intent" of the individual police officers involved. (43) In concluding that traffic stops are reasonable whenever the police have probable cause of a traffic violation, the Court "flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification." (44)
In addition to Whren, the Court has refused to inquire into police officers' subjective motivations in a number of other Fourth Amendment cases. In creating the good-faith exception in United States v. Leon, for example, the Court emphasized that the relevant inquiry does not "turn on the subjective good faith of individual officers," but instead on "the objectively ascertainable question" whether "a reasonably well trained" police officer would have realized the search was unconstitutional. (45) Likewise, in Brigham City v. Stuart, the Court held that the exigent circumstances exception to the warrant requirement applies so long as the police have "an objectively reasonable basis for believing that an occupant is seriously injured"--"regardless of the individual officer's state of mind." (46) The Court therefore refused to inquire whether the warrantless entry at issue there was "'motivated primarily'" by the goal of safeguarding lives or instead by investigatory purposes unrelated to any purported exigency. (47)
Thus, the Court has become increasingly reluctant to consider law enforcement officials' subjective motivations in Fourth Amendment cases, even though, as explained above, (48) it undermines the exclusionary rule's deterrent function to consider only the objective reasonableness of police officers' behavior and not their subjective good faith as well. Nevertheless, as explained in the next section, there are some situations in which the Court has looked at police officers' subjective intent.
C. SUBJECTIVE (POLICE OFFICER)
Perhaps the most well-recognized instance of the Court's use of a subjective standard focused on the police is in the context of administrative searches. In administrative search cases, the Court has required evidence of some "'special needs, beyond the normal need for law enforcement,'" and therefore has refused to permit warrantless, suspicionless inspections "whose primary purpose was to detect evidence of ordinary criminal wrongdoing." (49) Admonishing that "only an undiscerning reader" would find these administrative inspection rulings inconsistent with Whren, (50) the Court has distinguished the two lines of cases on the grounds that "'subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis'" (like Whren), but that "programmatic purposes" may be relevant when evaluating the constitutionality of searches (like administrative inspections) conducted "pursuant to a general scheme absent individualized suspicion." (51) More recently, the Court described the distinction somewhat differently, driven perhaps by its extension of Whren beyond the context of "ordinary, probable-cause" searches. (52) Thus, in Brigham City v. Stuart, the Court observed that the "special needs" inquiry examines "the purpose behind the program" and "has nothing to do with" the intent of the individual officer who performed the search. (53)
Even if the Court can convincingly distinguish administrative searches on this ground, (54) it has in fact evaluated the subjective motivations of individual police officers in contexts that do not involve the "programmatic purposes" of an administrative inspection scheme. For example, in holding that the consent search exception to the warrant requirement does not extend to dueling co-tenant situations where one co-tenant is present and objects to the search, the majority in Georgia v. Randolph dismissed the dissenters' concerns about the opinion's impact on domestic violence victims, noting that "[t]he undoubted right of the police to enter in order to protect a victim ... has nothing to do with the question in this case." (55) The Court injected subjective considerations into another portion of its opinion in Randolph as well when it observed that its decision applies only when the nonconsenting co-occupant is actually on the scene, absent evidence that the police "removed" that individual "for the sake of avoiding a possible objection." (56) Likewise, in Samson v. California, the Court upheld suspicionless searches of parolees pursuant to a California statute that conditioned parole on submission to a wide variety of searches, (57) responding to the dissent's criticism that the statute allowed unfettered police discretion by noting that it was not meant to permit searches "'for the sole purpose of harassment.'" (58) In each of these cases, the constitutionality of the search was determined, at least in part, by evaluating the reasons animating the particular police officers involved. (59)
Further illustrations of the Court's reliance on the subjective motivations of individual officers can be found in several opinions analyzing the permissible scope of a Terry stop and frisk. (60) In Sibron v. New York, one of the companion cases to Terry, the Court described the legal justification for a frisk in objective terms--requiring "constitutionally adequate, reasonable grounds," i.e., "particular facts from which [the officer] reasonably inferred that the individual was armed and dangerous." (61) Nevertheless, in applying that standard and finding inadequate support for the frisk conducted there, the Court not only examined how the reasonable police officer would have viewed the situation (reasoning that the defendant's acts did not create a "reasonable fear ... on the part of the police officer"), but also looked at the particular police officer's subjective intent. (62) Specifically, the Court observed that Officer Martin never "seriously suggest[ed] that he was in fear of bodily harm and ... searched Sibron in self-protection to find weapons," but rather "made it abundantly clear" that he frisked Sibron because he "sought narcotics." (63)
More recently, in upholding the constitutional reasonableness of a "stop and identify" statute in Hiibel v. Sixth Judicial District Court, the Court observed that an arrest for violating the statute was permissible only if "the request for identification" was "reasonably related to the circumstances justifying the stop." (64) In concluding that asking Hiibel to disclose his name met the "reasonably related" standard because it was a "commonsense inquiry," however, the Court did not apply an objective test. (65) Rather, the Court's sole explanation turned on the deputy sheriff's subjective intent--that his request was "not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence." (66)
Some of the Supreme Court decisions governing the fruits of the poisonous tree doctrine provide a final example of the Court's reliance on police officers' subjective motivations. (67) In interpreting the reach of the attenuation exception to the poisonous tree doctrine--which allows the prosecution to use the fruits of a constitutional violation sufficiently "attenuated" from the violation "to dissipate the taint" (68)--the Court noted in Brown v. Illinois that "the purpose and flagrancy of the official misconduct" is a "particularly" relevant factor. (69) Any other result, the Court reasoned, would "substantially dilute[]" the effectiveness of the exclusionary rule, "regardless of how wanton and purposeful the Fourth Amendment violation." (70) Accordingly, in finding insufficient evidence of attenuation on the facts before it, the Brown Court considered the subjective intent of the police officers involved, observing that they acted "in the hope that something might turn up" and in a way "calculated to cause surprise, fright, and confusion." (71)
Likewise, in Murray v. United States, (72) the Court analyzed the scope of the independent source exception to the fruits of the poisonous tree doctrine, which allows the use of evidence the police have discovered through some means independent of the constitutional violation. In ruling on the admissibility of evidence initially seen during the unconstitutional entry of a warehouse, but seized only later--pursuant to a warrant obtained after the initial, illegal search--the Court observed that the applicability of the independent source exception depended not only on whether the police used any information found during the illegal entry to procure the warrant, but also on the subjective inquiry whether "the agents' decision to seek the warrant was prompted by what they had seen during the initial entry." (73)
These decisions make perfect sense in terms of ensuring that the police do not benefit from a constitutional violation and thus in advancing the Court's interest in deterring unconstitutional police behavior. (74) They cannot, however, be reconciled with statements in numerous other Fourth Amendment opinions refusing to consider police officers' subjective motivations--including, interestingly, the Court's refusal to require an absence of bad faith in order to establish the third exception to the fruits of the poisonous tree doctrine, the inevitable discovery exception. This exception applies when derivative evidence, although actually found unconstitutionally, "ultimately or inevitably would have been discovered by lawful means." (75) Although it is "closely related" to the independent source exception, looking in essence for a "'hypothetical independent source,'" the Court in Nix v. Williams relied on a balancing test to reject the lower court's good-faith requirement. (76) Making arguments that might also have been made in Murray, the Nix Court reasoned that a good-faith requirement would place the police "in a worse position" than they would have been absent the constitutional misconduct and would entail "enormous societal cost[s]" in the form of lost evidence. (77) The Court also explained that its decision to reject the lower court's approach would not undermine deterrence because the police "will rarely, if ever, be in a position to calculate" whether evidence will later be discovered through some other means. (78) Although Nix is therefore consistent with the Court's frequent admonition that judges should not consider police officers' subjective intent in evaluating the constitutionality of searches and seizures, there are a number of situations described in this section where the Court itself has done precisely that.
D. OBJECTIVE (DEFENDANT)
Despite the Court's adherence to the deterrence rationale of the exclusionary rule, and its tendency therefore to focus on the police, some Fourth Amendment standards turn on the perspective of the reasonable defendant. The primary example is the definition of a Fourth Amendment "seizure," where the Court has adopted an objective standard controlled by the defendant's point of view. The Court has repeatedly indicated that a suspect has been "stopped" for purposes of Terry--and therefore seized--only if a reasonable person in her position would have felt she was "'not free to leave,'" (79) "to decline the officers' requests or otherwise terminate the encounter." (80) In its recent decision in Brendlin v. California, the Court unanimously endorsed this test, holding that the relevant question in determining whether a passenger was seized during a traffic stop is "what a reasonable passenger would have understood." (81)
Even here, however, the Court has deviated from this objective standard. In concluding in California v. Hodari D., for example, that a fleeing suspect who was being pursued by the police had not been seized "until he was tackled," the Court seemed more interested in the perspective of Hodari D. himself. (82) Presumably a reasonable person in his position--especially a reasonable innocent person (83)--would not have felt free to leave once the police gave chase. (84) Nevertheless, the Court explained that the "reasonable suspect" standard "states a necessary, but not a sufficient, condition," and it rejected the notion that "a seizure occurs even though the subject does not yield." (85)
Given the Court's emphasis on deterrence in its Fourth Amendment rulings, its choice to focus on the perspective of the defendant rather than the police officer in this context may seem somewhat surprising. (86) But if the definition of a seizure really turns on whether the suspect felt free to leave--i.e., on whether the interaction with the police was voluntary or coerced--the relevant question here is reminiscent of that asked in the consent search cases addressed in the next section, many of which do center on the defendant's point of view.
E. SUBJECTIVE (DEFENDANT)
In addition to most Fourth Amendment "seizure" cases, which as explained above apply a "reasonable defendant" standard, there are even some circumstances--most notably in the context of consent searches--where the Court has adopted a subjective standard focused on the defendant's point of view. Here again, however, the Court has not adhered to a single perspective. Rather, the Court has wavered between the consent model, analyzing whether the defendant's decision to consent was truly free and voluntary, and the coercion model, evaluating whether the defendant's consent was the product of police coercion.
In allowing the police to search without either a warrant or probable cause so long as they have the defendant's voluntary consent, the Court in Schneckloth v. Bustamonte borrowed the voluntariness test used in determining the admissibility of confessions (87)--a totality of the circumstances standard that considers both the characteristics of the particular defendant and the conduct of the police. (88) Although the Court rejected the argument that consent to search operates as a waiver of Fourth Amendment rights, thereby triggering Johnson v. Zerbst's decidedly subjective conception of waiver as "an intentional relinquishment or abandonment of a known right or privilege," (89) the voluntariness standard the Court adopted for consent searches was essentially a subjective one. Thus, Schneckloth listed "the possibly vulnerable subjective state of the person who consents," "evidence of minimal schooling," and "low intelligence" among the factors relevant in assessing the voluntariness of consent. (90)
In Illinois v. Rodriguez, however, the Court deviated from this subjective standard and opted for an objective test focused on the perspective of the police, thereby seemingly endorsing the coercion model. (91) Rodriguez upheld the validity of third-party consent searches on an apparent authority theory--where neither the defendant nor an authorized third party had actually consented, but the police "reasonably (though erroneously)" believed they had been given consent by someone with authority to do so. (92) Reasoning that the Fourth Amendment requires only that the police be "reasonable," not that they be "factually correct," the Court picked up on Schneckloth's distinction between consent searches and a criminal defendant's waiver of "trial rights" (which must actually be knowing and intelligent). (93) The Court then adopted an objective measure of consent centered on the police: "'[W]ould the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises?" (94)
Likewise, in defining the permissible scope of a consent search in Florida v. Jimeno, the Court relied on an objective standard--"[W]hat would the typical reasonable person have understood by the exchange between the officer and the suspect?" (95) Although Jimeno has been interpreted as endorsing a "reasonable police officer" test, (96) it is somewhat unclear from the Court's language whether its objective inquiry turns on the perspective of a police officer or a third-party observer. (97) What is more certain is that Jimeno, like Rodriguez, retreats from the consent model and its concomitant focus on the defendant's point of view.
F. OBJECTIVE (THIRD PARTY)
Regardless of the Court's intentions in Jimeno, the prevailing definition of a Fourth Amendment "search"--as something that intrudes on a reasonable expectation of privacy (98)--is an objective standard tied neither to the reasonable defendant nor to the reasonable police officer. Unlike the definition of a Fourth Amendment "seizure," (99) the reasonable expectation of privacy standard depends on the expectations of privacy "society accepts as objectively reasonable," not the expectations of the defendant or a reasonable person in her position. (100) Thus, the concept has become a normative rather than an empirical one, with the Court even at times replacing the word "reasonable" with the term "legitimate." (101) As the Court observed recently in Illinois v. Caballes, "the expectation 'that certain facts will not come to the attention of the authorities'" does not necessarily give rise to a reasonable expectation of privacy, and therefore "[t]he legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car." (102) Even though it seems somewhat odd that the reach of the twin terms "search" and "seizure" in the Fourth Amendment's reasonableness clause (103) should turn on different points of view, the Court's Fourth Amendment jurisprudence has precisely that result.
G. CONCLUSION
In general, these varying perspectives can be found throughout the Supreme Court's Fourth Amendment rulings. Although the Court's emphasis on the exclusionary rule's deterrent function leads it to focus on the reasonable police officer in many cases, in others it inexplicably switches to consider the perspective of the reasonable defendant or a reasonable third party, or it adopts a subjective standard focused on the particular police officer or defendant in question.
Conceding the starting point of deterrence, the Supreme Court properly focuses on the point of view of the police officer, the actor to be deterred, in most Fourth Amendment cases. If the Court is serious about deterring unconstitutional searches and seizures, however, its choice of perspective should not fluctuate. For example, evidence uncovered by means of intrusions that a reasonable officer would not have made should be suppressed so as to discourage the practice of pretext stops and searches. (104) Moreover, the Court's exclusive reliance on an objective inquiry in many of its cases undermines its purported interest in deterrence. As explained above, (105) standard deterrence doctrine calls for suppressing evidence where police officers subjectively act in bad faith as well as where they fail to satisfy objective standards of reasonable police behavior.
Finally, even if most Fourth Amendment doctrines properly turn on the perspective of the police, the consent model suggests that the defendant's point of view ought to be controlling when issues surrounding voluntariness arise--i.e., in consent search cases and perhaps also in defining Fourth Amendment "seizures." (106) Although it may well be "reasonable for the police to conduct a search once they have been permitted to do so," (107) the requisite "permission" is not forthcoming unless the defendant willingly gives it. (108) Thus, the consent model calls for answering questions surrounding consent searches (like questions of waiver generally (109)) by evaluating the subjective intent of the defendant--not only in assessing the voluntariness of her consent, but also in determining the scope of her consent and the legitimacy of third-party consent searches. The Court may prefer an objective test focused on the reasonable suspect in defining the term "seizure" in order to make sure that "the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached." (110) This concern does not apply to consent searches, however, because the consent model envisions a subjective notion of "voluntary" waiver and consent, which by definition does vary depending on the individual's state of mind. In any event, the consent model mandates that the focus not deviate...
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