Thursday, December 9, 2010
Stanley A. Goldman (Loyola Law School Los Angeles) has posted Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases on SSRN. Here is the abstract:
Whether we are speaking of Hudson v. Michigan, Herring v. United States, Arizona v. Gant, Thornton v. United States or even though slightly older Illinois v. Wardlow, these cases represent a trend by the high court to limit the scope of both the 4th amendment and the exclusionary rule. The result is that law enforcement will obtain greater freedom to engage in stop and frisk as well as search and seizure without fear that the evidence may be excluded during the course of any subsequent criminal trial. The problem with these cases may be that they fail to recognize the societal costs of giving police such free reins without consequences. In this 25 page paper, the author summarizes and examines these and other recent United States Supreme Court cases and concludes that they are often being interpreted by lower courts to create broader powers in the police than the cases themselves actually provide. In some respects, this article is both an examination of what the cases "could" stand for if interpreted either broadly or narrowly. There is much for prosecutors in these cases, but there is also a surprising amount left to be argued by defense counsel, who may still find arguments for exclusion in the modifiers that are provided by either an essential 5th vote concurrence or by the majority opinion itself. If nothing else, this article provides a quick summary of the essentials of these transformative cases.