October 22, 2010
Bellin on Crime Severity and the Fourth Amendment
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.
October 22, 2010 | Permalink
Wow, I disagree with every premise in this abstract! I don't know anybody outside a few zealots who believe "the 'reasonableness' of a search or seizure depends to some degree on the seriousness of the crime being investigated," nor is it remotely the case that the main objection to "altering this status quo is that a crime severity variable would be unworkable."
A search at a traffic stop might yield nothing, might yield drugs, or there could be a dead body in the trunk. What results from the search is irrelevant from a Fourth Amendment perspective, and certainly nothing in the plain text of the amendment says the protection only applies unless cops are investigating a really serious crime.
I guess if you only argue against straw men it's easy to reach your desired conclusion.
Posted by: Gritsforbreakfast | Oct 22, 2010 8:03:08 AM
Unless you think it is equally reasonable to, say, burst into a home at 4am to search (1) for evidence of serial killings, or (2) for evidence of illegal song dowloading, you agree that reasonableness depends to some extent on the seriousness of the crime under investigation. The Sct's primary response to this intuition is that is impossible to administer in practice. You can find this debate in a number of S.Ct. cases (e.g., Atwater, Mincey). Here is Justice Stevens dissenting on this point with respect to school searches under the 4A in T.L.O.:
"The logic of distinguishing between minor and serious offenses in evaluating the reasonableness of school searches is almost too clear for argument.”
Posted by: Reasonable | Oct 24, 2010 9:13:09 AM
I think it's reasonable to burst into a home for either reason if police have a warrant, unreasonable if they do not. So no, I simply don't agree. The author of the article himself writes that "In fact, the existing literature contains little analysis of the difficulties of incorporating crime severity into Fourth Amendment balancing." That's because there's absolutely zilch in the text of the Fourth Amendment itself that supports that view and those espousing it are seeking to (further) chip away at the amendment's scope without any identifiable basis in the Constitution.
Posted by: Gritsforbreakfast | Oct 27, 2010 10:30:13 AM