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Tuesday, November 30, 2004

New Article Spotlight: The Original Understanding of Unreasonable Searches and Seizures

David_e_steinbergCrimProf David E. Steinberg of Thomas Jefferson has just published the above-titled article in the Florida Law Review.  The introduction states:

"Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities.  In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement activity. In some cases, law enforcement officers must obtain a warrant.  In other cases, officers must possess "probable cause," or a "reasonable suspicion."   The Supreme Court's current presumption that the Fourth Amendment typically covers law enforcement investigations is ahistorical. A review of history demonstrates that the Fourth Amendment was intended to proscribe only a single, discrete activity-physical searches of houses pursuant to a general warrant, or no warrant at all.  The framers never intended that the Fourth Amendment would apply to other government evidence-gathering activities.  Accordingly, the Fourth Amendment simply provides no guidelines for random drug tests, sense-enhanced searches, automobile checkpoints, and the many other situations where the Supreme Court has attempted to apply the Amendment."  [Mark Godsey]

http://lawprofessors.typepad.com/crimprof_blog/2004/11/new_article_spo.html

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