Friday, May 28, 2010
Wayne A. Logan (Florida State University - College of Law) has posted Reasonableness as a Rule: A Paean to Justice O'Connor's Dissent in Atwater v. City of Lago Vista (Mississippi Law Journal, Vol. 79, p. 115, 2009) on SSRN. Here is the abstract:
This paper, part of a sympoisum dedicated to "great" Fourth Amendment dissents, examines Justice Sandra Day O'Connor's dissent in Atwater v. City of Lago Vista (2001), where by a 5-4 vote the Court upheld the constitutionality of warrantless police arrests for non-breach of the peace, fine-only offenses. In addition to rightfully condemning the majority's decision to equate probable cause with constitutional reasonableness, in principle, Justice O'Connor presciently recognized the numerous liberty and privacy-restricting consequences of the outcome for the "everyday lives of Americans." Atwater, combined with decisions issued before and after it, including Whren v. United States, Devenpeck v. Alford, and Virginia v. Moore, has afforded police historically unprecedented discretionary authority, examples of which are surveyed in the paper.