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Tuesday, October 12, 2010

Lee on the Disappearing Container Doctrine

Lee_cynthia Cynthia Lee  (George Washington University Law School) has posted The Disappearing Container Doctrine (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

In the 1970s, the Court announced in a series of cases that police officers with probable cause to believe contraband or evidence of a crime is within a container must obtain a warrant from a neutral, detached judicial officer before searching that container. In requiring a search warrant, the Container Doctrine put portable containers on an almost equal footing with houses which enjoy unquestioned Fourth Amendment protection.



In this Article, Professor Lee demonstrates how the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued by a judicial officer. Studying the numerous ways in which the Court has undermined the Container Doctrine is useful for several reasons. First, the erosion of the Container Doctrine is emblematic of a more tectonic jurisprudential shift - the Court’s movement away from the Warrant Preference view (the belief that the Fourth Amendment expresses a preference for warrants) and its gradual embrace of the Separate Clauses (or reasonableness) view of the Fourth Amendment. Second, the Court’s willingness to allow a growing number of container searches without warrants suggests a deep judicial ambivalence about the effectiveness of warrant formalism. Third, the demise of the Container Doctrine, and its corresponding impact on the poor and homeless, reflects a troubling indifference to non-majoritarian interests.

This Article proceeds in four parts. In Part I, Professor Lee examines the longstanding debate over whether the Fourth Amendment expresses a preference for warrants or merely requires that searches and seizures not be unreasonable. In Part II, she provides background on the Container Doctrine and discusses its rationales. In Part III, she examines the myriad ways in which police can lawfully search a container without a warrant. The Court’s increasing willingness to tolerate warrantless searches of containers mirrors its gradual embrace of the Separate Clauses or Reasonableness view of the Fourth Amendment, the position that all the Fourth Amendment requires is that searches and seizures be reasonable. In Part IV, Professor Lee discusses why this movement away from warrants towards reasonableness in the container search context is problematic and what might be done about the situation. She notes that reasonableness review tends to be highly deferential to the government and wildly indeterminate. Not requiring warrants for most container searches hurts the poor and, by implication, poor communities of color, more so than the wealthy. To rectify this unfairness, Professor Lee proposes an additional layer of review in container search cases. Borrowing from a small slice of the Court’s equal protection jurisprudence – the Court’s “rational basis with bite” cases -- Professor Lee proposes that courts be non-deferential and rigorous when engaging in reasonableness review. In other words, she proposes that reviewing courts employ reasonableness review “with teeth.”

http://lawprofessors.typepad.com/crimprof_blog/2010/10/lee-on-the-disappearing-container-doctrine.html

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Comments

It is very informative and interesting blog

Posted by: chasony | Oct 23, 2010 8:23:28 PM

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