Saturday, August 20, 2011
Cynthia Lee (George Washington University Law School) has posted Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis (Mississippi Law Journal, Forthcoming) on SSRN. Here is the abstract:
This essay assesses the past, the present, and the future of Fourth Amendment reasonableness analysis. Part I focuses on the past. For much of the twentieth century, the Court embraced what is called the warrant preference view of the Fourth Amendment under which a search was considered reasonable if the government obtained a search warrant prior to the search or an exception to the warrant requirement applied. Part II focuses on the present. Even though it still treats as reasonable both searches conducted pursuant to a warrant and searches that fall within a well established exception to the warrant requirement, the modern Court has increasingly abandoned the warrant preference view. Instead of interpreting the Fourth Amendment as expressing a preference for warrants, the modern Court reads the text of the Fourth Amendment as simply requiring reasonableness. In a number of cases, the modern Court has adopted what some have called an originalist approach, assessing the reasonableness of a search based on whether the challenged governmental action was unlawful under the common law at the time of the framing. Part III critiques the Court’s current focus on reasonableness as the touchstone of Fourth Amendment analysis. It starts with what might be called the traditional critique of reasonableness. Under this critique, the current reasonableness inquiry is problematic because it provides insufficient guidance to lower courts and results in rulings that tend to be overly deferential to the government. Part III also provides the left critique of reasonableness. Under this critique, implicit bias may lead police officers to see young men of color on the street as more suspicious than others, which may lead them to stop and search those individuals more frequently than others. Implicit bias may also lead courts to exercise their discretion to decide whether a search is reasonable in ways that favor law enforcement and disfavor Blacks and Latinos who make up the bulk of individuals arrested, tried, and convicted of crimes in the United States. Part IV looks to the future. Professor Lee opines that the Court today stands at a crossroads. It can completely replace the warrant preference model with the reasonableness model of the Fourth Amendment, as it has already done in a few cases, it can return to a robust embrace of the warrant preference view, or it can recognize the virtues of the warrant preference and the reasonableness models and improve upon both. Because the Court is unlikely to return to a robust embrace of warrants, Professor Lee argues that the Court should continue its current path of recognizing both models. Instead of extremely deferential pro-government reasonableness balancing, however, Professor Lee argues that courts should engage in a more stringent form of Fourth Amendment reasonableness review. Borrowing from a small slice of the Court’s equal protection jurisprudence, its rational basis with bite cases, Professor Lee urges courts assessing the reasonableness of a Fourth Amendment search to engage in less deferential reasonableness review with teeth.