The End of the War on Drugs, the Peace Dividend and the Renewed Fourth Amendment?

By Michael Vitiello   

The War on Drugs profoundly eroded the Fourth Amendment.1 D.C. Circuit Court of Appeals Judge Harry T. Edwards summed it up in the midst of the War when he expressed his “growing concern about the degree to which individual rights and liberties appear to be falling victim to the Government’s ‘War on Drugs.’”2 Scholars have identified many areas where the Supreme Court cut back Fourth Amendment protections as part of the War on Drugs. For instance, the Court has treated the drug-detection dog sniff as “sui generis” and correspondingly refused to recognize such a sniff as a search at all, despite its clear purpose to detect evidence of criminal activity.3 Additionally, the Court has found that police do not engage in Fourth Amendment activity when they fly over a suspect’s property, even when that overflight allows officers to peer into areas within a home’s curtilage that the homeownersought to exclude from the public’s view.4 The Court has also upheld consent searches under circumstances that defy credibility, for example, where a defendant would be able to drive away without more than a traffic ticket, but consents to a search leading to evidence that puts him away for years in prison.5 At the height of the War on Drugs, the Court extended the scope of a vehicle search-incident-to-a-lawful arrest to the entire passenger compartment, including closed containers within the vehicle.6 While, for a time, the Court seemed ready to declare some traffic offenses so trivial that the Fourth Amendment prohibited a custodial arrest,7 the Court rejected such a rule.8 Oddly enough, the Court has held that the Fourth Amendment does not outlaw a custodial arrest even when an officer erroneously believes that he has authority to make that arrest.9 The Court’s unwillingness to allow a defendant to inquire into whether a traffic stop was pretextual at a suppression hearing also contributes to the erosion of Fourth Amendment protections.

73 OKLA. L. REV. 285 (2021)