Book Review

• Pages: 06

SEARCH AND SEIZURE:A TREATISE ON THE FOURTH AMENDMENT (2d Edition)*

reviewed by Major Wayne E. Anderson**

The second edition of Search and Seizure: A Treatise on the Fourth Amendment by Professor Wayne LaFave is now available through West Publishing Company, The new edition consists of four separate volumes with over 2,800 pages of text. I approached the review from two directions. The more formal system I employed was to pick areas in which there have been significant changes and areas in which there have few changes in the law since 1919. Then, with the first edition opened to the correspond. ing page, I read these sections and compared them with the arighal materials. My other approach, less methodical but more enjoyable, was to simply take one of the four books home and read a section that piqued my interest.

As with the first edition, Professor LaFave's stared purpose is to " 'report in a systematic and orderly fashion the current state of Fourth Amendment law' and also 'to present a critical assessment of how the Supreme Court and lower courts have fared in their ongoing and challenging enterprise of giving content and meaning to the Fourth Amendment.' "

Professor LaFave points to the constant flow of decisions from the Supreme Court as well as lower appellate courts as necessitat. ing a "substantially revised and expanded' second edition. He counts 90 decisions by the Supreme Court that have affected his treatise. All of the cases are discussed in the second edition. Notwithstanding the significant expansion, Professor LaFave added only two new sections to his treatise: 5 1.3 The Leon "Goad Faith" Exception and 5 1.4 The Scott "Bad Faith' Doctrine.

*LaFave. Wayne R Seoieh and Seizure A Treatise on the Fourth Amendment S u i Paul, Minnesota. West Pubhshing Campany. 1986. Four volumes Index.table of eases table of 81amtes. table of rvlea and wulations. Price. s210.00Publirher'r Addresp. West Fubhshlng Company, 50 W KeUogg Boulevard Smnt Paul, Minnesota 55165.

**Judge Advocate Generals Carps Unired States Army Maim Anderson 1s an

initmctor in the Criminal La- Division. The Judge Advocate Genera% School. Charloltesvdle, Vrginia

While the second edition does expand substantially on the original edition. there are few reuisions. That 1s to say, most of the original edition is faithfully reproduced in the second with new material interspersed between and tacked on the end of original paragraphs. Thid observation is certainly not a condemnation: indeed. the first edition has enjoyed widespread and well-earned acclaim for it8 scholarship and comprehension. Neverthe less, there are a few instances in which the old text has been preserved notwithstanding new developments that render it tedious, if not superfluous. For example, in his discussion of "Searches Directed at Students," Professor LaFave reproduces in its entirety the original discussion of the doctrine of in loco parentis. This doctrine, at least in the context of school searches, was unceremoniously rejected by the Supreme Court in ,Vex Jersey u T.L.0' as Professor LaFave himself points out. Of coume, in many instances the "old" law is still relevant in that state6 may apply a more rigorous standard. Moreover. in many instances the old rules have historical value. Nevertheless, for the benefit of the researcher. Professor LaFave should have wielded the axe more liberally.

Professor LaFave's "system" for reporting fourth amendment law in a 'systematic" manner can best be described as "item analysis." A casual perusal of the table of contents best demonstrates the point: it reads like a menu. For example, the reader will discover chapters on consent searches and automobile searches. There are sections on airport searches. border searches, prisoner searches and the nature of probable cause. The list goes on and on. The advantage of this "item analysis" approach is that, in most cases, it clearly highlights specific subject area8 for the researcher, The disadvantage of the "item analysis" approach is that underlying fourth amendment concepts are never woven together and presented in a methodied fashion. For example. when governmental activities are minimally intrusive of individual privacy and liberty interests or where there is not an expectation af privacy that society is willing to recognize as reasonable. then no fourth amendment interests are implicated. To this writer, discussion of the concept of fourth amendment coverage with specific references to the plain view doctrine, unobtrusive police interaction with citizens, prism cells. ete. provides a more cohesive focus for analysis. These numerous search and seizure imm of similar conceptual ilk should be addressed as a separate and conceDtuallv distinctive tooic. With Professor LaFave's "item

19871 BOOK REVIEWS

analysis." however, issues relating to fourth amendment coverage are spread throughout the treatise. A discussion of the Kat2 definition of B "search," and use of devices to enhance the senses is found in Chapter Two; plain view is discussed in Chapter Seven which is entitled "Search and Seizure of Vehicles;" fourth amendment coverage of a prison cell is discussed in Chapter Ten; and nonapplicability of the fourth amendment to minimal restric. tions on liberty is discussed in Chapter Nine. By way of fwther example, the exclusionary rule appears initially in Chapter Oneand again in Chapter Eleven. In Chapter One, Professor LaFave discusses the "Good Faith' exception to the exclusionary rule (among many other things) and discusses the "Inevitable Discov. ery" doctrine in Chapter Eleven. The two exceptions to the exclusionary rule have many kindred issues, such as the purpose of the exclusionary rule, the societal costs of exclusion, and the impact of exclusion on police behavior. It is unclear what...