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Volume 24, Number 1 (2000) reprinted by permission Legal Studies Forum LONELY HEARTS AND MURDERERS: THE FOURTH AMENDMENT THROUGH HITCHCOCK’S LENS JASON P. ISRALOWITZ* — L.B. Jefferies (James Stewart), to girlfriend
Lisa Fremont (Grace Kelly), in Rear Window
have begun to find an audience among the small but growing number of scholars interested in the convergence of film and law.7 By contrast, Rear Window,8 Hitchcock’s 1954 classic, is known not for its legal content, but rather for the litigation it inspired. The film earned Hitchcock and his star, James Stewart, their only trip to the Supreme Court,9 albeit one that ended in defeat. In Stewart v. Abend,10 the Court held that the re-release of Rear Window in 1977 infringed the renewal copyright in the short story that inspired the film.11 The ruling ensures Hitchcock a lasting, if dubious place in copyright casebooks. To mark both the centennial of Hitchcock’s birth12 and the restoration of his work,13 this essay offers a more content-based approach to Rear Window. The film should be a favorite among professors of criminal procedure. For whatever it may teach us about marriage, male impotence, or McCarthyism,14 Rear Window can also be understood as a meditation on the competing values that inform Fourth Amendment law.15 Which is more important to us—effective law enforcement, or individual privacy?16 Should the police have broad discretion in their use of surveillance techniques to ferret out crime? Or should we be guided more by our historic dread of an unchecked state investigative apparatus, capable of infiltrating the most intimate aspects of our private lives? Rear Window hinges on a murder uncovered as the result of pervasive visual surveillance. Hitchcock’s chief surveillant is L.B. Jefferies (“Jeff” to his friends) (James Stewart), a wheelchair-bound photojournalist laid up in his apartment with a broken leg. Jeff spends his convalescence looking out his window and, with the use of binoculars and a camera lens, watching his neighbors: an attractive blond who dances around her apartment in her underwear (whom Jeff dubs “Miss Torso”); an aging spinster desperately looking for someone to love (“Miss Lonelyhearts”); a newlywed couple whose passion quickly gives way to disaffection; and a jewelry salesman, Lars Thorwald (Raymond Burr), who Jeff comes to suspect has murdered his wife. The better part of the film has Jeff spying on Thorwald and then using the visual “evidence” to try to persuade his nurse Stella (Thelma Ritter), his model girlfriend Lisa (Grace Kelly) and his detective friend Doyle (Wendell Corey), that something sinister has happened to Mrs. Thorwald. As the characters debate the propriety of Jeff’s surveillance and private investigation, the film explores the circumstances in which privacy should give way to “crime control.”17 The screenplay by John Michael Hayes includes extended dialogue on the ethics of surveillance, the Bill of Rights, and even the evidence necessary for a search warrant. Since the prevailing view among film commentators is that Rear Window condemns voyeurism and other encroachments on privacy,18 one might expect the film to unambiguously embrace restrictions on government surveillance. But Hitchcock invites competing readings. The film as a whole suggests a Fourth Amendment ethic rooted more in privacy interests than crime control norms. The richness of Rear Window, however, lies in its investigation of the impulses underlying these conflicting values while allowing us the pleasure of watching Stewart and Kelly crack a murder case. This aerial intrusion occurs in the film’s opening moments as Jeff surveys the scene across his courtyard. The sequence has a distinguished literary counterpart. George Orwell dotted the landscape of his police state nightmare, 1984, with helicopters that “skimmed down between the roofs” to keep the citizenry in check.19 “It was the Police Patrol,” Orwell wrote, “snooping into people’s windows.”20 Shot less than seven years after the first use of helicopters by police,21 the spy-chopper scene anticipates Fourth Amendment cases on warrantless aerial surveillance. The scene also includes a characteristic Hitchcock twist. Rather than simply use the helicopter as an Orwellian symbol of technological encroachment on individual privacy, Hitchcock adds an element of exhibitionism: the sunbathers are, after all, partially nude and are arguably observable from nearby buildings. Other neighbors exhibit various forms of exhibitionist behavior, ranging from the scantily-clad Miss Torso to a middle-aged couple who sleep on their fire escape to beat the heat. Still, Hitchcock chooses not to focus on whether these neighbors have forfeited their expectation of privacy by placing themselves on display22 but on Jeff, the Everyman-turned-voyeur. We share Jeff’s point of view as he gazes across the courtyard; as a result, he is quickly established as a surrogate for the moviegoer, sitting in the dark, watching the private lives of others unfold while retaining his anonymity.23 The merging of Jeff’s voyeurism with our own desensitizes us to the invasions of privacy that befall the neighbors across the courtyard. The film’s very first scene sets us up as invaders of privacy. As the opening credits roll, several bamboo shades are raised to reveal the view outside Jeff’s window. The camera slowly pans across the courtyard and begins peeking into several of the neighbors’ apartments, before gradually swinging back to reveal Jeff asleep in his wheelchair. When, in the very next scene, Jeff assumes his viewing station, his conduct merely replicates ours. Of course, we are also drawn into Jeff’s voyeurism by the presence of James Stewart, who was cast decidedly against type as a peeping-tom. The all-American Stewart persona—developed most memorably in the films of Frank Capra—heightens our identification with his character, however questionable his behavior.24 Hitchcock apparently intended such identification in Rear Window. In response to moralists who saw Stewart’s character as an irredeemable peeping tom, Hitchcock said, “I’ll bet you that nine out of ten people, if they see a woman across the courtyard undressing for bed, or even a man puttering around his room, will stay and look; no one turns away and says, ‘It’s none of my business.’”25 Like a detective on a stakeout, Jeff dutifully monitors the doings across the courtyard and, as a result, observes Thorwald quarreling with his invalid wife. Then, on a rainy night, he hears a scream and the sound of breaking glass. Stationing his wheelchair by the window, he observes Thorwald carrying a suitcase repeatedly leave his apartment after midnight. These comings-and-goings fire Jeff’s suspicions: “Why should a man leave his apartment three times on a rainy night with a suitcase?” he wonders. And the next morning, Jeff uses his binoculars to observe Thorwald wrapping a saw and knife in newspapers in the kitchen. Jeff now sets out to collect additional “evidence” and convince the other characters that something awful has happened to Mrs. Thorwald. At first, Lisa views Jeff’s voyeurism and suspicions as a diversion to avoid an emotional commitment in their relationship. She explicitly challenges the morality of Jeff’s conduct: “Sitting around, looking out of the window to kill time is one thing. But doing it the way you are, with binoculars and wild opinions about every little thing you see is . . . diseased.” At one point, she spins his wheelchair away from the window, instructing Jeff—”there is nothing to see.” In his defense, Jeff catalogues the visual evidence he has amassed: “I’ve seen bickering and family quarrels and mysterious trips at night and knives and saws and rope—and now since last evening, not a sign of the wife.” Jeff proves adept at persuading both Lisa and Stella of the merits of his theory, and soon they, too, gravitate to the viewing window. Jeff’s entices them by telling a compelling “story” about Thorwald, much as a director aims to rivet an audience’s eyes to the screen.26 This storytelling has a deeper meaning when we view Jeff not only as a surrogate for Hitchcock, but also as a proxy for law enforcement. First, Jeff assumes investigative functions traditionally assigned to the police.27 While this hardly renders Rear Window unique, among either Hitchcock films or popular cinema in general,28 the film seems more interested in the phenomenon of surreptitious surveillance than in the identity of the surveillant. Second, by contrasting Jeff’s investigation to the cautious, and ultimately ineffectual, approach used by Detective Doyle (about which more below), Hitchcock explores the question of how much discretion government should have to investigate its citizens. This approach has peculiar resonance given the Supreme Court’s suggestion that police are free to see or do anything that a private citizen can lawfully see or do without the necessity of a search warrant.29 Viewed in this light, Jeff’s actions become fertile ground for evocation of Fourth Amendment themes. His theories about Thorwald are designed to justify his voyeurism, much in the way the government marshals incriminating evidence to establish “probable cause” for the issuance of search warrants. Likewise, only after Jeff has articulable suspicions about Thorwald does he escalate his voyeurism through use of binoculars and a large telephoto lens. Jeff’s transition to visual aids can be viewed as a metaphor for the way the police intensify surveillance as their suspicions about a suspect take shape. At the same time, Hitchcock undermines the justifications for Jeff’s conduct. As Detective Doyle repeatedly points out, Jeff’s evidence is flimsy: Thorwald has merely gone out several times in the middle of the night and then (according to Jeff) stared nervously out his window the next morning. Moreover, Jeff proceeds to use his binoculars and zoom lens with equal fervor on the other neighbors such as Miss Lonelyhearts. It is these instruments of technology that, according to the liberal judges of the day, could “penetrate walls and overcome distances” and thereby invade “intimate personal matters.”30 Stella calls the telephoto lens a “portable keyhole,” for good reason; it enables Jeff to see inside the homes of his neighbors with sufficient clarity to obliterate the distance across the courtyard.31 The film moves more squarely into Fourth Amendment terrain when Jeff convinces Detective Doyle to look into Mrs. Thorwald’s disappearance. Doyle reports that a building superintendent and two tenants saw Thorwald and his wife depart and that, upon his return, Thorwald told the super he had put his wife on a train to the country. Jeff, however, dismisses this “second-hand version” of Thorwald’s statement, and, in so doing, triggers a classic Fourth Amendment debate: Jeff: Go over there and search Thorwald’s apartment. It must be knee-deep in evidence. Doyle: I can’t do that. Jeff: I don’t mean right now, but when he goes out for a drink or a paper. What he doesn’t know won’t hurt him. Doyle: I can’t do that even if he isn’t there. Jeff: What’s he have? Does he have a courtesy card from the police department or something? Doyle: Now, don’t get me mad. Not even a detective can walk into an apartment and search it. Why, if I were caught in there, they’d have my badge within 10 minutes. Jeff: All right, make sure you don’t get caught, that’s all. But if you find something, you’ve got a murderer and they won’t care anything about a couple of house rules. If you don’t find anything, the fella’s clear. Doyle: At the risk of sounding stuffy, I’d like to remind you of the Constitution and the phrase “search warrant” issued by a judge who knows his Bill of Rights verbatim. He must ask for evidence. Jeff: Give him evidence. Doyle: I can hear myself: ‘Your Honor, I have a friend who’s an amateur sleuth, and well, the other night, after having a heavy dinner . . . .’ Oh, he’d throw the New York State Penal Code in my face, and it’s six volumes. Jeff: You know, by tomorrow morning there may not be any evidence left over in that apartment, you know that. Doyle: It’s a detective’s nightmare. Jeff: Well, what do you need before you can search, tell me, what do you need—bloody footprints leading up to the door? Doyle: One thing I don’t need is heckling. You called me to ask for help. Now you’re behaving like a taxpayer.The scene ends with Doyle further discrediting Jeff’s theory by advising him of a postcard found in Thorwald’s mailbox, apparently sent by Mrs. Thorwald from the country.32 The detective’s restraint here is ironic given Hitchcock’s avowed fear of the police.33 Doyle comes across as a whipped law enforcement figure and is distinctly unsympathetic to a Hitchcock audience, hell-bent on uncovering a crime.34 Fearful of breaching the “house rules,” Doyle departs from the cinematic imperative of solving crimes and meting out justice at any cost.35 Doyle is Dirty Harry inverted. Jeff, in contrast to Doyle, articulates a conventional disdain for the invocation of constitutional rights of people we think have committed a crime. Adopting a “no harm, no foul” attitude, Jeff sees no harm in merely looking: either evidence of a crime will be uncovered or the “suspect” will be exonerated, in which case he is “clear.” Jeff expresses populist versions of crime control values; his disparaging reference to constitutional standards as “house rules” captures the popular distaste for the application of the exclusionary rule36 to suppress evidence of crime.37 No one should care about legal technicalities, Jeff argues, in the event that a murderer has actually been apprehended. Jeff’s insistence that Thorwald would benefit from a search that exonerates him taps into the crime control notion that “the innocent have nothing to fear.”38 While these positions have emotional appeal, the film recognizes that Jeff’s view is a narrow one. Jeff does not consider the precedential effect of permitting a furtive invasion of his neighbor’s home. Hitchcock, however, is very much interested in the issue, as demonstrated by the narrative developments that follow. Shortly after his debate with Doyle, Jeff gets a taste of his own limited ideas about privacy. Lisa arrives to stay over for the night and leaves her overnight bag—lingerie and all—in plain view on the table. With Lisa in the kitchen, Doyle enters without so much as knocking (the door to Jeff’s apartment is always open; the other characters enter at will throughout the film). The detective begins to banter with Jefferies when he notices the lingerie on the table. A quick cut to Jeff reveals a look of apprehension. Moments later, Lisa enters and is introduced to Doyle. “We think Thorwald’s guilty,” Lisa proudly announces. Doyle’s eyes return to the lingerie, then to Jeff. “Careful, Tom,” warns an increasingly uncomfortable Jeff. Pressed by Lisa to explain the suspicious doings in Thorwald’s apartment, Doyle insists that “[t]hat’s a secret, private world you’re looking into out there. People do a lot of things in private they couldn’t possibly explain in public.” Later, when Jeff harps on Thorwald’s non-disclosures to his landlord, Doyle’s eyes return to the lingerie: “Do you tell your landlord everything?” It is, of course, ironic that Doyle continues to argue for privacy values while ogling Lisa’s lingerie; his own conduct is a realization of his argument, prompting Jeff to reiterate that “I told you to be careful, Tom.” Jeff, like most Americans, wants it both ways. He is eager to vest government with unbridled investigative discretion, but only so long as his own privacy is not implicated.39 The film suggests that Jeff’s attitude towards police searches would create a culture of surveillance that would encroach on the affairs of the innocent. We must honor constraints on government unless we can live with detectives arriving unannounced, snooping around the most intimate aspects of our daily lives. Hitchcock explores this tension between crime control and privacy most dramatically by cutting between Jeff’s surveillance of Thorwald and his observations of the travails of Miss Lonelyhearts. She is, by far, the most sympathetic character in the gallery of Jeff’s neighbors and the one who most poignantly embodies the interests affronted through surveillance. Early in the film, Jeff watches Lonelyhearts pretend to have dinner with an imaginary guest before she breaks down in tears of loneliness. He continues his surveillance of Lonelyhearts on the night of Thorwald’s mysterious trips, as reflected by his report to Stella the following morning that “poor Miss Lonelyhearts cried herself to sleep again—alone.” Later, Jeff uses his telephoto lens to spy on Lonelyhearts sitting alone at an outdoor restaurant next to her apartment building. And it is here that Hitchcock delivers the first of two knockout images that encapsulate the conflict at stake in Fourth Amendment jurisprudence: Lonelyhearts sits alone at the restaurant, in the cross-hairs of Jeff’s lens, when, Thorwald suddenly walks directly in front of her. In a single shot, the murder suspect is thus superimposed on the innocent spinster in the view through the lens of surveillance. The camera then follows Thorwald to his apartment, leaving Lonelyhearts alone at the restaurant, a casualty of Jeff’s boundless “investigation.” Shortly thereafter, following Doyle’s warning against invasions of the “secret, private world” across the courtyard, Jeff and Lisa watch as Lonelyhearts returns to her apartment with a male guest. Lonelyhearts lowers her blinds, but remains in view through the slits. She shares an initial consensual kiss with her guest, before he quickly gets rough with her. Lonelyhearts slaps him, shows him the door, and then breaks down in tears again. Jeff and Lisa react with visible discomfort. The scene is a powerful commentary on Jeff’s voyeurism, reminding us that while unconstrained surveillance may capture wrongdoers, it will violate the dignity of innocents. Jeff himself is moved, for the first time, to question whether “it’s ethical to watch a man with binoculars and a long focus lens.” “Do you suppose it’s ethical,” he asks Lisa, “even if you prove he didn’t commit a crime?” The question bespeaks Jeff’s recognition that, if he is wrong about Thorwald, the matter cannot be swept away under the rubric of “What he doesn’t know can’t hurt him.” Jeff’s flash of insight about what Lisa terms “rear-window ethics” only goes so far, however. With an air of hollow defensiveness, he insists that “[o]f course they can do the same thing to me, watch me, like a bug under glass if they want to.” Jeff’s choice of language itself belies his cavalier attitude towards the idea of being spied upon. Like all of us, he fears that a “they” may be watching, armed with Big Brother instru-ments capable of reducing us to arthropodal dimensions. This is precisely the dread that underlies vigilant attitudes toward government monitoring. Even more significantly, Jeff’s conduct makes clear that he cannot abide the prospect of being watched. At one point, when Jeff sees Thorwald staring out the window, he frantically retreats into the darkness. Jeff then ascribes guilt to Thorwald based on the very act of “looking” that Jeff engages in throughout the film: “The salesman’s looking out of his window,” he tells Stella. “That’s no ordinary look. That’s the kind of look a man gives when he’s afraid somebody might be watching him.” The irony, of course, is that Jeff’s words describe himself as much as Thorwald. Jeff is similarly distressed by Doyle’s fixation on Lisa’s overnight bag, even though Doyle’s “looking” is far less intrusive than Jeff’s secret surveillance of his neighbors. Jeff’s voyeurism is downright hypocritical. Jeff’s moment of self-awareness proves fleeting in the aftermath of his discussion with Lisa about the ethics of his conduct. A scream signals the discovery of a dead dog in the courtyard. Heartbroken, the dog’s owner directs her outrage to the entire apartment complex: “Which one of you did it? Which one of you killed my dog? You don’t know the meaning of the word ‘neighbor.’ Neighbors like each other, speak to each other, care if anybody lives or dies. But none of you do.” Her speech is an impassioned argument against the culture of isolation that pervades the neighborhood—a culture reflected in Jeff’s inability to relate to his neighbors as anything other than objects to observe. Jeff, however, is blind to the dog owner’s point. To the contrary, he sees only vindication in the dog’s murder, since Thorwald was the only neighbor who did not come to his window to investigate the din accompanying the dog’s discovery. Jeff concludes that Thorwald strangled the dog because it was sniffing around a patch in his garden where (he suggests) Mrs. Thorwald’s remains are buried. Thus, even as the dog owner condemns the neighborhood’s indifference, the episode supplies new evidence to justify Jeff’s surveillance of Thorwald. As Jeff moves ever closer to proving his case, he and Lisa quickly put aside their doubts about their spying. To keep the issue in the foreground, however, Hitchcock continues to use Lonelyhearts as a counterpoint to the crime control benefits of surveillance. Thus, while Lisa drops an accusatory note under Thorwald’s door, Stella uses the telephoto lens to spy Lonelyhearts arranging a bottle of pills and some water—a possible prelude to suicide. Stella airs her concerns about Lonelyhearts’ intentions to Jeff. These concerns are set aside, however, upon Lisa’s triumphant return (she barely escapes detection by Thorwald). The trio then lure Thorwald out of his apartment with a threatening phone call, enabling Lisa and Stella to attempt to find out what lies buried in the flower bed. In the thrill of the hunt, however, Lonelyhearts is forgotten. Even Stella casts aside her fears about the suicide in order to go digging in the garden. The dog owner’s indictment of the neighborhood has been realized: “Nobody cares who lives and who dies.” Preoccupied with the search for Mrs. Thorwald, Jeff lets five minutes go by before returning his gaze to Lonelyhearts. Even then, despite the fact that her behavior (writing out a note) is consistent with an intention to commit suicide, Jeff casually concludes that “Stella was wrong about Miss Lonelyhearts.” Upon returning to Jeff’s apartment, Stella resumes her monitoring. She sees Lonelyhearts reaching for the pills and, consequently, insists that Jeff call the police. Moments later, though, the suicide ritual is interrupted by music coming from a neighboring pianist’s apartment. Touched by the beauty of the music, Lonelyhearts aborts her suicide attempt. Jeff’s voyeurism is not, therefore, vindicated through a beneficent “rescue” of Lonelyhearts. Instead, she finds rebirth through a connection to the neighbor’s music—the first positive form of communication between neighbors in the entire film.40 This affirmation of the need for community occurs just as Lisa is dangerously escalating the investigation of Thorwald by entering his apartment through an unlocked window. The object of the search is what Lisa and Jeff regard as conclusive evidence of the murder: Mrs. Thorwald’s wedding ring. Suddenly we see Thorwald appear in the hallway leading to his apartment, with Lisa still inside. Jeff and Stella watch, terrified, as Thorwald discovers Lisa and begins shaking her. Jeff calls the police to report an assault in progress, but is otherwise as helpless as the audience to stop the attack.41 The scene, perhaps the most suspenseful in the film, is a realization of Hitchcock’s reported observation that “terror results from disorder.”42 The disorder has arisen because Jeff and Lisa have flouted Doyle’s admonition about the need to develop evidence to support and obtain a warrant authorizing the search of Thorwald’s apartment. Lisa’s decision to break into Thorwald’s apartment exposes her to life-threatening danger.43 And, as if to punctuate the point, the police arrive in the nick of time, and effectively “restore order” by interrupting the attack and, ironically, arresting Lisa and removing her from the premises. The police rescue in Rear Window is cited in a study of Hollywood’s treatment of social issues as an example of the positive approach towards law enforcement reflected in the films of the 1940s and 50s: “although the police are minor characters, they perform well, providing critical support to the characters, who would have come to a bad end without their assistance.”44 The authors link the depiction of the police to the Hollywood Production Code, a set of morality standards that barred, among other things, “disparaging images of the legal system” and its representatives.45 Hitchcock, however, was anything but deferential to the Code,46 and the depiction of the police in Rear Window is far more ambiguous than suggested. Doyle’s investigation, for example, yields a factual account that corroborates a murderer’s cover story. Even the scene in which the police “rescue” Lisa hardly suggests a model of police efficacy. Despite the report of an attack in progress and Lisa’s screams coming from inside the apartment (which are loud enough for Jeff to hear across the courtyard), the police amble into view in the hallway and politely ring Thorwald’s doorbell as if arriving for a cocktail party. Then, they arrest Lisa for breaking-and-entering, while leaving the murderer secure in his apartment. If the scene dramatizes the danger of an unauthorized search, its subtext suggests a police force short on assertiveness and perspicacity. In that very same scene, however, Hitchcock delivers a jolting visual effect (the second of the film’s memorable Fourth Amendment images) that vindicates Doyle’s privacy concerns. As Lisa is about to be led out of Thorwald’s apartment by the police, she signals to Jeff her discovery of Mrs. Thorwald’s wedding ring by pointing, behind her back, to the ring on her finger. The camera tracks from Lisa’s hands to a shot of Thorwald, who has noticed the signal. Thorwald then looks directly into the camera (and across the courtyard to Jeff’s window); he has detected the source of his trouble. The effect of the shot is that Thorwald is staring directly at us—a moment of pure cinematic inversion. Having sat safely in the dark and watched Thorwald for ninety minutes, we are now being watched. In one shot, Hitchcock thus conveys the inevitable consequence of uncontrolled surveillance: sooner or later, the spies themselves will be spied upon. If we sanction invasions of our neighbors’ privacy (or go a step further and effect the invasions ourselves), we put our own privacy in jeopardy. It is hard to imagine a legal argument, however eloquent or artfully constructed, that can make that point as viscerally as Hitchcock does here.47 Soon thereafter, terror flows again from the disorder wrought by Jeff’s pursuit of Thorwald. Jeff, alone in his apartment, speaks to Doyle by phone about the discovery of the wedding ring and Lisa’s arrest. Moments later the phone rings again. Jeff, who thinks Doyle is calling back, announces that “I think Thorwald’s left,” only to discover silence on the other end of the line; it is Thorwald, confirming the identity of his accuser. Jeff immediately realizes his mistake, but he is powerless. Aware that Thorwald is coming to get him, he can only remain seated in the dark, alone and trapped like a bug under a glass. The confrontation that follows betrays Hitchcock’s ultimate view of Jeff’s voyeurism. “What do you want from me?” Thorwald asks. As Jeff remains silent, Thorwald pleads for an explanation: “What is it you want? A lot of money? I don’t have any money. Say something. Say something. Tell me what you want!” Hitchcock said in interviews that Jeff’s prolonged silence reflects the lack of justification for his voyeurism and that he “deserves what’s happening to him”48: It’s the climax of Peeping Tom-ism, isn’t it? “Why did you do it?” he says. “If you hadn’t been a peeping Tom, I would have gotten away with it.” Stewart can’t answer. What can he say.49 Jeff was only able to discover Thorwald because he was systematically monitoring his neighbors; his surveillance is indiscriminate and rooted in “sheer curiosity.”50 Hitchcock’s observation undermines any argument that the film adopts a crime control perspective.51 The confrontation scene highlights Jeff’s transgression of legal norms in his investigation (as evidenced by his inability to answer Thorwald’s question). Film scholar Robert Corber has noted that Hitchcock “visually expresses Jeff’s problematic relation to the law” by cutting between Thorwald, pitiably pleading for some explanation from his accuser, and Jeff, a silent, “darkened silhouette” who looks for a moment “even more sinister and menacing than Thorwald.”52 According to Corber, the scene “locates Jeff outside the law by establishing a resemblance between him and the very murderer he has been trying to expose.”53 While Corber overstates the film’s “equating” of Jeff and Thorwald on this ground, his argument has echoes of a favorite rallying cry of privacy hawks in Fourth Amendment cases: that lawless criminal investigations must not be condoned, even where they have led to the apprehension of a felon.54 The film’s climax has Jeff struggling with Thorwald, and then hanging out his rear window by his fingertips. Doyle arrives in the nick of time with the police, who restrain Thorwald, but are unable to prevent Jeff’s fall into the courtyard. Despite the police rescue, Jeff cannot resist a parting shot at the ineffectual Doyle. “You got enough for a search warrant now?” he asks, lying on the ground, his other leg now broken. Jeff’s crack taps into a popular intuition that adherence to procedural norms is inconsequential when the end game is apprehending or convicting a murderer. But Hitchcock hardly endorses Jeff’s call for broad police discretion. While the film may not celebrate Doyle’s sensitivity to constitutional rights, nor does it advocate arming him with carte blanche to investigate us—whether by peering into our windows or rummaging through our homes to search for evidence. For every Lars Thorwald tempting us to embrace such discretionary surveillance, there are many more Lonelyhearts. Amsterdam’s warning about police discretion captures one of the principal themes of Rear Window, which shows both guilty and innocent people ensnared by indiscriminate monitoring. The film explores the same dilemma that confronts judges charged with defining the Amend-ment’s protections: unregulated surveillance may greatly advance crime control, but at the risk of breaching cultural norms of privacy that protect innocent people. The Supreme Court’s touchstone in this area has been whether the police conduct infringed an expectation of privacy that society is prepared to accept as reasonable.59 The Court presents this inquiry as an all-or-nothing proposition: either the conduct is a search, in which case the requirement of a warrant is triggered absent exigent circumstances, or it is not, in which case the strictures of the Fourth Amendment simply do not apply.60 Invariably, the courts wrestle with the definition of search where warrantless surveillance has turned up evidence of a crime. The choice for the Court in these disputes is stark: a finding that a warrantless search has occurred usually requires the exclusion of damning evidence and, with it, the reversal of a criminal conviction.61 The Court has repeatedly avoided this result by exempting a broad range of police surveillance techniques from the concept of a Fourth Amendment “search,”62 including aerial surveillance from airplanes63 and helicop-ters,64 rummaging through our trash,65 the installation and monitoring of electronic beepers,66 and the use of “pen registers” to determine the phone numbers we dial.67 Like Hitchcock’s hero, Americans want to give police a free hand to control crime and abhor the prospect of letting a murderer go free because of legal rules. At the same time, we dread the prospect of exposing our private lives to greater scrutiny from a state investigative apparatus. Rear Window challenges our inclination to compartmentalize these competing impulses. In so doing, the film aligns Hitchcock with justices—most often the authors of dissenting opinions—who have sought to overcome the Fourth Amendment’s “public-relations dilemma”68 by positing the implications of unregulated surveillance for innocents. In theory, the Fourth Amendment inquiry is supposed to view privacy expectations from the point of view of innocents.69 More often than not, however, the Court’s focus has been on whether the specific form of surveillance was reasonable.70 The more abstract counter-point—based on what privacy values might get swept up in the unregulated sphere of surveillance—tends to get compartmentalized by the Court and reserved for another day, in the event there is actual evidence that the methods used by the police have gotten out of hand.71 The Court has no human face to put on this countervailing privacy interest, since innocent people who are not ultimately arrested rarely learn they have fallen under police surveillance.72 Any privacy argu-ment on behalf of such theoretical constructs is far less immediate, harder to articulate, and, of course, burdened with the stigma attendant to the release of a criminal. Consider the Court’s attempt to grapple with the Fourth Amendment implications of Hitchcock’s hovering helicopter, last seen encircling two nude Greenwich Village sunbathers. In Florida v. Riley,73 police failed to obtain a warrant before using a helicopter to circle 400 feet above the backyard of a resident suspected of cultivating mari-juana. The pilot saw marijuana plants growing in the resident’s greenhouse, leading to the resident’s arrest and conviction on drug possession charges. A plurality on the Court held that the officer’s aerial surveillance did not amount to a “search” for Fourth Amendment purposes; the defendant had no “reasonable expectation of privacy” in the greenhouse since “[a]ny member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse.” The Court found it significant that “no intimate details connected with the use of the home or curtilage were observed.”74 In so doing, the Court tied its ruling to the criminal activities of the defendant and the fruits of the search—a post-hoc approach that manifests itself in other cases,75 but one that is odds with the Court’s disavowal of hindsight Fourth Amendment assess-ments.76 Seizing upon this inconsistency, a dissenting Justice Brennan observed that “[i]f the Constitution does not protect Riley’s marijuana garden against such surveillance, it is hard to see how it will prohibit the government from aerial spying on the activities of a law-abiding citizen on her fully enclosed outdoor patio.”77 The Court’s exemption of a category of surveillance—however reasonably or successfully implemented in a particular case—may enable that form of surveillance to go unregulated with pernicious effect. From this premise, Brennan and other dissenters have argued that the Fourth Amendment’s focus should be on the implications of unregulated police investigations for innocent citizens.78 One recent example of such an approach lies in the Tenth Circuit’s initial decision in U.S. v. Porco,79 on the warrantless use of “thermal imaging” to monitor the exterior of a suspect’s home. A thermal imager registers heat patterns emanating from a particular structure, revealing “hot spots” that can be used to identify the particular activities that generate the heat. While in Porco, the imager disclosed evidence of marijuana cultivation, the Court saw the potential for other, more dangerous uses arising from the capacity of the imagers to identify intimate human movements. The Court stated that “[w]e do not imagine that it would be considerably more difficult to identify (if not strictly speaking, to watch) two people making love in the privacy of their darkened bedroom.”80 Having thus created its own hypothetical victims of unconstrained police discretion, the Court held that the use of thermal imagers by police amounted to a “search” for Fourth Amendment purposes.81 The Court’s approach embraces the formulation of the Fourth Amendment inquiry suggested by Amsterdam: “whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.”82 At the same time, the Court’s reasoning avoids the abstractness83 of that formulation through reference to what many Americans likely consider to be the most private of enclaves—sexual intimacy. Similarly, Rear Window bridges the gap between surveillance of a particular criminal (Thorwald) and broader privacy interests by depicting a wide range of personal conduct that is swept up in Jeff’s investigation. Even Jeff makes this connection: upon witnessing Lonelyhearts’ painful encounter with her male visitor, Jeff questions the ethics of his surveillance of Thorwald. The episode—which, significantly, follows on the heels of Doyle’s inspection of Lisa’s lingerie—suggests that the removal of legal constraints on investigative discretion may invite encroachments into our most intimate affairs. Hitchcock uses Lonelyhearts to put a face on the innocent subject of surveillance whom dissenters like Justice Brennan struggled for years to protect. The tension between privacy and crime control values forces society to make distasteful choices. Hitchcock’s film acknowledges—perhaps more bluntly than the dissents in the Supreme Court “search” cases—that the imposition of greater restraints on the police will make them ineffectual in some cases. Hence, Doyle’s failure to solve the Thorwald case despite Jeff’s prodding. The task of uncovering the murderer is left to a voyeur who draws upon resources outside the law (spying, ingenuity, breaking-and-entering by Lisa) to solve the crime. These aspects of the narrative invite the argument that Thorwald’s capture vindicates Jeff’s voyeurism. Only by dramatizing the costs of surveillance for innocents does Hitchcock forestall this interpretation. The film thus evokes Justice Brandeis’ landmark dissent in Olmstead v. United States84: “‘it is better that a few criminals escape than the privacies of life of all the people be exposed to the agents of government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the courts.’”85 Rear Window invites Fourth Amendment dialogue. Should apartment-dwellers be subject to unconstrained visual surveillance merely because they have failed to draw their blinds securely enough to foreclose outside observation? The question appeared headed for clarification in 1998, when the Court granted certiorari in a Fourth Amendment challenge to warrantless police observation through a ground-level window of an apartment building. The decision below held that a police officer engages in a Fourth Amendment search when he surmounts bushes and places his face a foot from the window to peer into the apartment through a small gap in the blinds. of privacy in the apartment because it belonged to one of his cohorts.87 Still, Justice Breyer, concurring in the judgment, concluded that the officer’s warrantless observation was “constitutionally permissible” since he looked through the window “from a public vantage point.”88 Justice Breyer went so far as to characterize the officer’s decision as a potential boon to privacy interests since, if it disclosed no evidence of drug-dealing, it “would have more likely saved an innocent apartment dweller from a physically intrusive though warrant-based search.”89 The premise of this argument (that the police could have obtained a warrant) is open to serious question, since the State initially conceded below that it lacked “probable cause” to search prior to the officer’s observations.90 One might also consider how private, law-abiding citizens would react if, in the midst of going about their daily activities in the kitchen, they suddenly caught a glimpse of a police officer straining to see through a gap in their blinds. Leaving such possibilities aside, however, Justice Breyer’s position has echoes of Jeff’s suggestion to Doyle that a search that vindicates the suspect does no harm since “the fella’s clear” and “what he doesn’t know won’t hurt him.” Professor Amsterdam addresses the same point in considering whether society should endorse unrestrained visual surveillance because, as the police tell the protagonist of another Hitchcock film, the innocent have “nothing to fear”91: “The question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not.”92 That question resonates as Rear Window explores the values that animate the Fourth Amendent. |
