Fourth Amendment - An Immodest Proposal

• NCJ Number: 94408
• Journal: American Journal of Criminal Law Volume: 11 Issue: 3 Dated: (November 1983) Pages: 293-320
• Author(s): J M J Bartee
• Date Published: 1983
• Length: 27 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

The fourth amendment should read that nonseizure-oriented searches take place without a warrant, although safeguards not usually required for a warranted search may be required to satisfy the reasonableness clause of the amendment. The cause required to justify a nonseizure-oriented search is never that which is required for a seizure-oriented search.

Abstract

The reasonableness clause, not the warrant clause, is the lodestar guiding all governmental conduct under the fourth amendment, as the reasonableness clause requires that even warranted searches to be executed in a reasonable manner. There are no exceptions to the warrant clause; there are simply reasonable searches which do not fall within the warrant clause. There is no such thing as a warrant based on other than probable cause as traditionally understood. The theory outlined in the article demonstrates that inspection-oriented searches fall without the warrant clause and that strictures imposed by the reasonableness clause on the execution of inspection-oriented searches are as severe and even more severe than those imposed by administrative warrant. The theory justifies every present warrant exception by demonstrating that none is solely seizure-oriented, or if one is, that it is justified by a lack of practical ability in obtaining a warrant. A diagram encompasses all present exceptions to the warrant clause and explains when a warrant is required. This will depend on whether or not there was governmental conduct, an intrusion on a reasonbale expectation of privacy, the class or type of proposed invasion of privacy was permissible, and the search contemplated was solely seizure-oriented. It will also depend upon the quantum of information necessary to justify a particular administrative inspection-orientation search, the safeguards required by the reasonableness clause in executing the search, and whether or not the quantum of information required to justify a search made pursuant to warrant is probable cause and whether the presumption of a warrant requirement is rebutted if the search is seizure-oriented. A total of 78 footnotes are provided.