CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, June 7, 2013

Schroeder on Factoring the Seriousness of the Offense into Fourth Amendment Equations

Schroeder williamWilliam A. Schroeder (Southern Illinois University at Carbondale - School of Law) has posted Factoring the Seriousness of the Offense into Fourth Amendment Equations: Strip Searches in Detention Facilities -- Atwater Strikes Again (Akron Law Review, Vol. 46, No. 2, 2013) on SSRN. Here is the abstract:

This article uses the Court's 2012 decision in Florence v. Board of Chosen Freeholders to discuss the impact of the Supreme Court's decision in Atwater v. City of Lago Vista on other areas of search and seizure law. In allowing the police to make custodial arrests for any offense however minor, the Atwater Court reached a result that was contrary to the intentions of the Framers, and which, in a very real sense, totally nullified the Fourth Amendment in most settings outside the home. Much of what is wrong with the Court's decision in Atwater is its failure to recognize the profound consequences of custodial arrest. If a person charged with a minor crime is subjected to custodial arrest, that arrest will, in most cases, be the most significant consequence suffered by the arrestee as a result of that offense. A custodial arrest is an awesome and frightening experience. Florence allows the police to add another major consequence — a strip search — to that experience. 

This article suggests, inter alia, that Atwater can and should be limited, or better yet, overruled, by the adoption of reasonableness and probable cause standards that take into account the seriousness of the offense and make custodial arrests of minor offenders, and searches directed at minor offenders, much more difficult to justify than comparable activities directed at serious offenders.

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