Monday, April 20, 2015
David C. Gray (University of Maryland Francis King Carey School of Law) has posted Fourth Amendment Remedies as Rights: The Warrant Requirement (Boston University Law Review, Vol. 96, 2015, Forthcoming) on SSRN. Here is the abstract:
The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.
These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the Court appears sympathetic to the view that these technologies raise Fourth Amendment concerns, it has been wary about imposing a warrant requirement. As was made clear last term during oral argument in California v. Riley, part of that reserve reflects doubts among the justices about the warrant requirement’s status and constitutional pedigree.
This article takes a novel approach, using a conventional Fifth Amendment story to tell an unconventional Fourth Amendment story. In its landmark Miranda decision, the Court held that prospective remedial measures were necessary to resolve pervasive threats to Fifth Amendment rights posed by the “inherently coercive atmosphere” of custodial interrogations. The Court held that Miranda warnings provide an effective, enforceable, and parsimonious means to resolve those constitutional concerns. In the intervening years, the Court has maintained the constitutional status of Miranda warnings even though they are not dictated by the text of the Fifth Amendment.
The Fourth Amendment warrant requirement is a prospective constitutional remedy akin to the Miranda prophylaxis. According to its text, and as it would have been understood in 1791, the Fourth Amendment establishes a collective right to remedies sufficient to guarantee the security of the people in their persons, houses, papers, and effects against threats posed by unconstrained governmental searches and seizures. The warrant requirement is just such a remedy, guaranteeing the security of the people against unreasonable search and seizure by interposing courts between citizens and law enforcement officers engaged in the “competitive enterprise of ferreting out crime.”