Based on my vast legal experience---reading crime novels and surfing the legal blogosphere---I have occasionally come up with a few radical ideas for criminal justice reform. As with my previous effort, this idea is probably unworkable, unconstitutional, and a sure election loss for any politician who proposes them. But what's a blog for?

When a cop wants to search your private belongings, he basically has two options. If he can meet certain legal requirements, he can order you to submit to a search. But if he's just fishing on a hunch, the only way he can do his search is if you give him permission.

Now suppose there's a bus stopped at a station, and while the driver is off dealing with paperwork, two police officers board it and take up stations at each exit. A third cop boards and starts interrogating the passengers, asking to search their belongings. If he finds bags of cocaine, can they be used in court?

In the real life case on which this is based, admissibility of the drug evidence turned on whether the defendants gave the cops permission to search.

The defense lawyers argued that the search was invalid because the defendants didn't think they could refuse what appeared to be an order from a cop. The court disagreed and admitted the evidence.

(To my way of thinking, when a guy carrying enough drugs to earn felony federal prison time submits to a police search, it's pretty obvious he didn't think he had a choice. But I'm not a lawyer, so I don't understand these things.)

The defense appealed and won in the circuit court, which ruled that passengers wouldn't feel free to refuse a police request under such circumstances, therefore it was a coerced search and the evidence was illegal.

Now the government appealed to the Supreme Court, which ruled in a 6-3 decision that the the search was legal:

...we conclude that the police did not seize respondents when they boarded the bus and began questioning passengers. The officers gave the passengers no reason to believe that they were required to answer the officers' questions. When Officer Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter...

This sets up a reasonable person standard: A search is consensual if a reasonable person would have believed he could refuse the police request.

Think about that for a minute. This case was argued all the way to the Supreme Court, with a reversal at every step up the ladder. Three of the Supreme Court judges disagreed with it. That's about a dozen judges who considered the question, and almost half of them reached what turns out to be the wrong answer.

Yet according to the decision, any reasonable bus rider should have been able to understand what was happening.

Results like this are why the reasonable person standard is sometimes derisively called the reasonable Supreme Court Justice standard: If Justice Scalia was riding that bus, he would have known what to do, so the court may conclude that everyone else could have figured it out as well.

It seems to me that there's a fundamental flaw with how the courts make decisions about trial motions. The general rule is that the jury is responsible for deciding the facts of the case---whether the defendant did the things for which he stands accused---but matters of law---such as what evidence can be presented to the jury---are decided by the judge.

I'm reasonably sure that makes sense. But when the legal principle behind a motion involves making a judgment about what a reasonable person would conclude under a specific set of circumstances...doesn't that sound like the court is making a finding of fact? Shouldn't the question be decided by a jury?

For a more concrete example, consider the situation where the police enter a house and find evidence of a crime. At trial, the defense tries to suppress the evidence because the police entered without a warrant. The prosecutor says they didn't need a warrant because the owner let them in. The owner denies giving permission.

That's a he-said/he-said situation, and it's currently up to the judge to decide whether to believe the police or the defendant. But isn't deciding credibility exactly the sort of thing we use juries for all the time? Shouldn't the question of who to believe be presented to a jury?

Obviously, it can't be the same jury that would hear the evidence if it's allowed. We need a special jury to decide facts for motions. Perhaps the judge could convene a special motion jury.

To save time and money, the jury could be smaller than the main jury, or the selection process could be streamlined, or maybe the jury could be reusable, like a grand jury, answering questions for several trials. Maybe its verdicts shouldn't have to be unanimous to avoid long deliberations.

It would still be a lot of work, and it would be a huge change in the way trials are conducted, but I just can't see a reason why findings of fact in the course of deciding a motion shouldn't require a jury.