NCJ Number
131136
Journal
Boston University Law Review Volume: 70 Issue: 1 Dated: (January 1990) Pages: 111-168
Date Published
1990
Length
58 pages
Annotation
This article concludes that police "pretextual" conduct in searches and seizures is unconstitutional, is subject to deterrence, and must be prevented.
Abstract
"Pretextual" activity is police conduct that appears objectively reasonable and which prosecutors attempt to justify after the fact on a legitimate fourth amendment theory consistent with that objective appearance, but that is in fact conducted for constitutionally illegitimate reasons. Part I of this article examines the fourth amendment's history and underlying policies, its reasonableness standard, and the exclusionary rule. Part II explores the role of time and temporal perspective in after-the-fact review of police activities. It argues that careless post-hoc judicial review of police activity often skews the reasonableness inquiry that is central to all fourth amendment cases. Part III examines the U.S. Supreme Court-fashioned rules under which courts must conduct post-hoc reviews of police activity. The article categorizes pretext claims and formulates a set of inquiries appropriate for each category. Part IV discusses the approaches to the pretext problem presented by the U.S. Supreme Court and several scholars. The article concludes that pretextual police activity is unconstitutional, that it is susceptible to deterrence, and that it therefore presents an apt arena for application of the exclusionary rule. It further advises that pretext claims may be effectively advanced under established fourth amendment principles. 366 footnotes