The Rhetoric of the Fourth Amendment: Toward a More Persuasive Fourth Amendment

Table of contentsI. Introduction.1871II. Rhetoric: The Art and Science of Persuasion.1878A. Classical Rhetorical Theory.1879B. Aristotle's The Rhetoric.1881III. Ethos, Pathos, Logos as Applied.1886A.Ethos: The Foundation.18861. Credibility and Stare Decisis.1887a. Rodriguez v. United States .1888b. United States v. Jones.1895c. Illinois v. Caballes .19092. Practical Wisdom.1914a. Georgia v. Randolph.1916b. The City of Ontario v. Quon.1921c. Justice Alito in United States v. Jones.1925B. Pathos.19291. Maryland v. King.19312. Safford Unified School District No. 1 v. Redding .19353. Samson v. California.1943C. Logos.19461. Missouri v. McNeely.19492. Navarette v. California .19553. Arizona v. Gant.1961IV. Why These Weaknesses.1963A. Stare Decisis and Ethos.1964B. Audience Expectation and Judicial Advocacy.1967V. Conclusion.1972I. IntroductionOn June 25, 2014, the United States Supreme Court issued its decision in Riley v. California,1 in which it held that cell phones are safe from warrantless governmental searches incident to an arrest.2 In newspapers throughout the country, the decision was declared great victory for privacy3 and, at least in this case, the Justices of the Court were declared wise.4 While all true, there is more to be found in the Riley decision than just cell phone privacy.5Scholars and judges have observed that judicial opinions are performative utterances . . . an expression that is not only articulated but also operative.6 Senior Judge Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit observed that a court's public performance in reaching conclusion is at least as important as the conclusion.7 The Supreme Court has reached similar conclusion, acknowledging that how the Court explains its decision is often as important as the ruling itself.8 When it comes to the Supreme Court, pleasing result in case is not, in and of itself, enough to declare it a opinion.9 Nor is it enough that concurrence or dissent supports the conclusion we may find prudent.A good is expected to be many things. We expect it to be grounded in logic, to be clearly stated, and to credibly account for the impact of prior Court rulings.10 We also expect the opinion to demonstrate practical wisdom, thereby creating rules that will work in the real world.11 Additionally, the Court must be attuned to the intense emotions stirred by Fourth Amendment questions when balancing between privacy and security.12 In short, the decision must be persuasive. Persuasive opinions enhance the legitimacy of the Court in the eyes of the public, law enforcement, and lower courts.13 More importantly, persuasive opinions lay deep roots that grow over time, creating whole new subcategories of constitutional law.14 Over time, particularly persuasive concurrence or dissent can outpace majority opinion and become the new rule of law. Finally, persuasive opinions are more likely to be enforced broadly and consistently by lower courts, rather than being limited to the facts of the opinion or misinterpreted because the decision is illogical or just wrong.15 Riley v. California is persuasive opinion.16It could be argued that the persuasiveness of Riley is matter of no great significance. For one, the Justices of the Supreme Court possess some of the finest legal minds in the country.17 Further, at the heart of what it is to be lawyer is the art and science of persuasion.18 Therefore, all Supreme Court decisions should be persuasive, and it should not come as great surprise that Riley is. Of course, this is not the case with all Supreme Court opinions.19The Supreme Court's post-Katz Fourth Amendment jurisprudence has been vigorously criticized. It has been described as arbitrary, unpredictable and often border[ing] on incoherent,20 a vast jumble of judicial pronouncements that is not merely complex and contradictory, but often perverse,21 and a mass of contradictions and obscurities. …

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