Friday, October 22, 2010
Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted
Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World on SSRN. Here is the abstract:
A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.
Nearly everyone agrees that, as an intuitive matter, the “reasonableness” of a search or seizure depends to some degree on the seriousness of the crime being investigated. Yet, current Fourth Amendment doctrine ignores this intuition. As a result, an invasive search of a suspected shoplifter is, legally speaking, no more or less reasonable than the same search of a suspected murderer.
Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.