by James Daily
Searches
As noted, the Constitution protects people from unreasonable searches, and there is a two-part test for determining whether a given search is reasonable or not. “[F]irst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” 6 For the Fourth Amendment to apply, both of these requirements must be met. The person in question must actually believe he or she had an expectation of privacy, and “society” (e.g., jurors and judges) must agree that the belief was reasonable.
So what does this mean for superheroes? Two superpowers that police would love to use when investigating crimes are X-ray vision and psychic powers. Unfortunately, using such powers would probably be an unreasonable search.
X-ray vision is often used to look through walls and inside containers. It’s not much of a stretch to imagine that when people put something behind a wall or inside a box, they intend for it to be private, and that expectation of privacy is reasonable since most people can’t see through walls. In fact, the Supreme Court has held that the police need a warrant to use special thermal imaging cameras to see warm objects through walls (e.g., marijuana growing lights). 7 The Court held that “obtaining by sense enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where…the technology in question is not in general public use.” 8
X-ray vision is not a sense-enhancing technology, but it is an unusual ability not in general public use. For example, even though Superman can see through the walls of a house, people in Metropolis still have a reasonable expectation that what goes on in their homes is private. Thus, if Superman or another character with X-ray vision (e.g., the Martian Manhunter) works for the police, they’ll need a warrant to use that power to investigate crime.
So it turns out the drug dealer in the example at the beginning of the chapter is partially right and partially wrong. If Superman was a police officer, he probably couldn’t use his X-ray vision to locate the drug stashes. Or, at least, any evidence obtained using X-ray vision in the absence of a warrant or justification for a warrantless search would be inadmissible. In that sense, from a perspective of being used to dealing with mundane law enforcement agencies, the dealer is right. But in this particular story, Superman doesn’t have any particular connection with any particular government agency, official or otherwise. So there probably wouldn’t be a problem with him using his powers to locate the stashes and then calling in an anonymous tip. This sort of thing happens all the time, and the police don’t really need much more than that in most cases.
The same is true of psychic powers like the mind reading powers of Professor X. If there is anywhere that people have a reasonable expectation of privacy it is in their own thoughts. Believe it or not, the Supreme Court has indirectly addressed this issue! Justice Brandeis, dissenting from the (later overturned) decision that wiretaps were not a search, said, “Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.…Can it be that the Constitution affords no protection against such invasions of individual security?” 9 Just as the Supreme Court later recognized that wiretaps are a form of search, 10 no doubt the Court would hold that mind reading likewise requires a warrant.
Two other powers that technology already provides the police are superhearing and highly acute visible light vision, in the form of powerful directional microphones and devices such as binoculars and telescopes. Just like their technological equivalents, both superpowers are likely to require a warrant when observing the inside of a home 11 but not when searching outside the home (e.g., a backyard or a public place). 12
Exceptions
There are several exceptions to the general rule that a search warrant is required, and we will discuss four of them: “stop and frisk” situations, searches incident to an arrest, exigent circumstances, and airports and other special environments. These searches have all been held to be reasonable by the Supreme Court, which means that a warrant is not required. However, they are each limited in the circumstances in which they are allowed and in the scope of what may be searched.
Stop and Frisk
First, and perhaps most importantly, is the “stop and frisk” exception. This exception allows a police officer who reasonably suspects “that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous” to identify himself as a police officer, make reasonable inquiries, and, if still reasonably fearful of his own or others’ safety, to “conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” 13
The “outer clothing” limitation suggests that the use of X-ray vision may be permitted so long as it is limited to the outer clothing. On the other hand, a general mind-reading search would probably not be permitted, since
[t]he sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. 14
Mind reading may be too broad unless it is limited to scanning for thoughts about hidden weapons or intent to assault the officer.
Searches After an Arrest
The police may search a person after arresting them, although there are again limits to the scope of the search. The arresting officer may “search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape” and “search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” 15
Even given these limitations, both X-ray vision and limited mind reading could be used here. X-ray vision is useful as a way to quickly search for concealed weapons or evidence, and mind reading may reveal the arrestee’s plans to attack the arresting officer, attempt an escape, or destroy evidence.
Exigent Circumstances
A warrant is not required “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” 16 Over the years the courts have established several examples of such exigent circumstances, including rendering emergency assistance, 17 pursuing a fleeing suspect, 18 and preventing the imminent destruction of evidence. 19 These exceptions are available even when the police created the exigent circumstances, as long as the police acted lawfully. 20 An example of this might be a police officer’s entering a bystander’s house if the officer thinks a stray bullet from a firefight may have hurt someone inside.
As you might imagine, this is an important exception for superheroes, who often find themselves rendering emergency assistance and pursuing suspects through buildings. The exigent circumstances doctrine allows superpowered police to make use of evidence of other crimes they discover while doing so.
Airports and Other Special Environments
Routine searches are allowed at airports, subway stations, border crossings, prisons, and other special environments: “where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’—for example, the searches now routine at airports and at entrances to courts and other official buildings. But where…public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.” 21 Such searches are also called “special needs searches” because they serve “special governmental needs, beyond the normal need for law enforcement.” 22 In such cases “it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualiz
ed suspicion in the particular context.” 23 That balancing test is based on four factors: “(1) the weight and immediacy of the government interest, (2) the nature of the privacy interest allegedly compromised by the search, (3) the character of the intrusion imposed by the search, and (4) the efficacy of the search in advancing the government interest.” 24
One can easily imagine the tremendous value that X-ray vision and mind reading would have at an airport or subway station. The constitutionality of searches by X-ray vision seems well established by the constitutionality of existing X-ray searches, including modern body scanners.
The case for mind reading is somewhat harder to make. Following the four-factor test, the weight and immediacy of the government interest is the same as for other searches. As the Second Circuit put it, “We need not labor the point with respect to need; the success of the FAA’s anti-hijacking program should not obscure the enormous dangers to life and property from terrorists [and] ordinary criminals.” 25 On the other hand, a person undoubtedly has a reasonable expectation of privacy in his or her own thoughts. The constitutionality of mind reading in the security context likely hinges on the third and fourth factors: the character of the intrusion and the efficacy of the search. If mind reading is painful, lengthy, stigmatizing, or ineffective then a court might hold that, on balance, it does not meet constitutional muster, even in the airport security context.
Fourth Amendment Violations
So what happens when the police violate the Fourth Amendment? There are two major consequences. The first is the exclusionary rule, under which evidence obtained in violation of the Fourth Amendment may not be admitted at trial. 26 Furthermore, any evidence derived from such tainted evidence is “fruit of the poisonous tree” and likewise cannot be admitted. 27 There are several exceptions to this rule, however. Tainted evidence may still be admitted if it can also be derived from an untainted source, 28 if it would have been discovered inevitably, 29 or if the connection between the lawless conduct and the discovery of the tainted evidence has become so attenuated as to dissipate the taint. 30
The second consequence is a civil lawsuit. Local and state police may be sued under 42 U.S.C. §1983, and federal officers may be sued directly under the Constitution in what is known as a “Bivens action.” 31 The standard for these suits is a high one, though. The official may invoke a qualified immunity, which requires that the plaintiff prove that the official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.” 32
Arrest
Once a superpowered police officer or citizen superhero has gathered evidence of a crime, under what circumstances can they arrest the suspect? As with searches, the rules are different depending on whether a warrant has been obtained or not. The rule for arrest warrants is simple: Like search warrants, they require probable cause. Also, like search warrants, there are exceptions to this rule. Thankfully, the exceptions are simpler.
A reasonable person would probably not feel free to leave after Captain America tells them “you’re under arrest.” Then again, Daredevil may not fit in most people’s definition of “reasonable person.” Mark Waid, Paolo Rivera et al., Red, White, Black and Blue, in DAREDEVIL (VOL. 3) 2 (Marvel Comics October 2011).
First, though, we should briefly define what arrest means. “[A] person has been ‘seized’ [i.e., arrested] within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 33 There’s no requirement to say “you’re under arrest” or to slap handcuffs on the suspect. As long as a reasonable person would not feel free to leave, he or she is under arrest as far as the Constitution is concerned. However, most reasonable people would not feel free to leave if they are told “you’re under arrest.”
Warrantless Arrests for Police and Citizens
The general rule is that a police officer may arrest any person without a warrant if the officer has probable cause to believe that the person committed a crime. In some states, the police officer must have observed the crime firsthand unless it was a felony. 34
Private citizens, on the other hand, are more restricted. The most common restriction is that a private citizen can only lawfully arrest someone when that person has in fact committed a crime. 35 If the private citizen is wrong, then they may be liable for false arrest, whereas the police would not be. Some states go further, only allowing citizen’s arrest in felony cases or in cases where the crime was committed in the arresting person’s presence. 36
The practical upshot is that superheroes had better know their legal environment. They risk criminal and civil liability if they arrest someone who hasn’t actually committed a crime, so they need to be sure of the situation before swinging into action. And this is probably a good thing; we wouldn’t want superheroes smashing heads or tying people up in webs on a hunch. Superheroes need to know what kind of crime has been committed, what evidence is required (because if the suspect isn’t convicted the superhero may face charges), and what kind of force the superhero can use. The rules for the use of deadly force are another state-by-state patchwork, so to be on the safe side, superheroes should stick to non-deadly force. Luckily many of them do that already.
Miranda Rights
You are probably familiar with the Miranda warning:
“You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?” 37
But what does this warning really mean? There are three parts to the warning. First, the suspect is reminded of his or her Fifth Amendment right to silence. 38 That is, the suspect has a right to be silent during interrogation and a right not to incriminate himself or herself at trial. Second, the suspect has a Sixth Amendment right to an attorney. Third, in order for the warning to be meaningful, the suspect must understand it. 39
So that’s what the warning means, but what are the consequences if the police don’t give the warning, as Captain America didn’t when he arrested Daredevil? If the police do not give the warning—or if the suspect did not understand it—then testimonial evidence from the suspect resulting from police interrogation is inadmissible against the defendant in a criminal case. 40 However, because this is a product of the Fifth Amendment, not the Fourth, the doctrine of the fruit of the poisonous tree (discussed earlier) does not apply. As a result, the police can use the information for other purposes, such as continuing the investigation, and evidence derived from the suspect’s testimony may be admitted as well.
Thus, in the Daredevil case, nothing Daredevil said to Captain America could be used against Daredevil. However, Captain America could use Daredevil’s claim that Daredevil was “turned into a hand puppet” to continue his investigation into the crimes Daredevil allegedly committed, and the admissibility of any evidence that he found during that investigation would not be affected by his failure to give Daredevil a Miranda warning.
Criminal Procedure at Trial
We have already discussed how the Fourth Amendment exclusionary rule and Miranda affect the admissibility of evidence at trial, but there are other constitutional rights that come into play during the trial phase, including the right not to testify at all and the right not to testify against oneself. Both of these rights are derived from the Fifth Amendment.
Just as in the real world, comic book superheroes that find themselves accused of a crime rarely waive these rights and take the stand in their own defense. Also just as in the real world, sometimes superhero defendants want to take the stand and must be talked out of it by their attorneys. 41 Once a defendant takes the stand, the prosecution can ask a lot of un
comfortable questions. It is often better to force the prosecution to find other ways of proving issues, such as where the defendant was at the time of the alleged crime—remember, innocent until proven guilty. Taking the stand means that the prosecution can ask the defendant directly.
Vance Astrovik (a.k.a. Marvel Boy) made use of his Fifth Amendment rights and declined to testify in his own defense. Smart move. Fabian Nicieza et al., Nothing But the Truth Part Two, in NEW WARRIORS (VOL. 1) 23 (Marvel Comics May 1992).
Captain America tried to convince Bucky Barnes’s attorney, Bernie Rosenthal, to put Bucky on the stand. In the end, Bucky followed his attorney’s advice and did not testify. Ed Brubaker et al., The Trial of Captain America Part 2, in CAPTAIN AMERICA (VOL. 1) 612 (Marvel Comics January 2011).
However, even though a defendant has agreed to testify, that does not waive the right not to incriminate oneself. A defendant can still “plead the Fifth” and refuse to answer questions that would tend to incriminate himself or herself. In fact, the right not to incriminate oneself applies to all witnesses in court, even civil cases, and even to nonparties (i.e., people who are not a plaintiff or defendant). The government can get around this by imposing immunity on the witness: If the witness is immune to prosecution, then he or she can be compelled to answer questions that would otherwise incriminate him or her. 42 This method is often used to force a member of a conspiracy to testify against the other coconspirators.
