Harmon on the Fragility of Knowledge in the Riley (Cellphone and 4A) Case
UVA Law Faculty Affiliations
In light of the likely significance of the Court's opinion in Riley v. California, I may seem obsessed with the trivial, but I can’t help but note the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals. On page 6, the Court states that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.” Though the proposition seems intuitively obvious, data on searches and seizures isn’t easy to find, so I was curious about the Court’s support.
Chief Justice Roberts cited LaFave’s Search and Seizure treatise, which struck me as an odd source for an empirical claim, so I looked it up. LaFave does indeed say, “While the myth persists that warrantless searches are the exception, the fact is that searches incident to arrest occur with the greatest frequency.” But that sentence has appeared unchanged since the first edition of the treatise in 1978. And LaFave’s support for the proposition is itself pathetic. It comes in a footnote which reads: “See T. Taylor, Two Studies in Constitutional Interpretation 48 (1969). ‘Comparison of the total number of search warrants issued with the arrests made is equally illuminating. In 1966 the New York police obtained 3,897 warrants and made 171,288 arrests. It is reliably reported that in San Francisco in 1966 there were 29,084 serious crimes reported to the police, who during the same year obtained only 19 search warrants.’ Model Code of Pre-Arraignment Procedure 493–94 (1975).”
Because I’m crazy, I pulled Taylor and the Model Code too.