Section 9.3 Theories of the Fourth Amendment

• Library: Criminal Practice 2012 Supp

A. (§9.3) Theories of the Fourth Amendment

Fourth Amendment interpretation, to a large extent, has reflected the Supreme Court’s view of the balance between the need for effective law enforcement and the protection of individual rights. In the era of the Warren Court, the concern for individual rights was paramount, and the Court recognized the need to use the Fourth Amendment to develop, in effect, a constitutional code of criminal procedure to control law enforcement activity. The Burger and Rehnquist Courts appear less concerned with protecting individual rights and show greater deference to operational choices made by law enforcement officials. See, e.g.,S.D. v. Opperman, 428 U.S. 364 (1976); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990). There are those who argue that this shift in focus is not unique to Fourth Amendment analysis, but is part of a trend in constitutional analysis generally. See, e.g., Nadine Strossen, Michigan Department of State Police v. Sitz: A Roadblock to Meaningful Judicial Enforcement of Constitutional Rights, 42 Hastings L.J. 285, 360–90 (1991).

A key interpretive question in Fourth Amendment analysis relates to the two clauses of the Amendment and whether they create a constitutional preference for a warrant or merely require that all searches and seizures be reasonable. SeeUnited States v. Rabinowitz, 339 U.S. 56 (1950) (majority adopts reasonableness approach over strong dissent by Justice Frankfurter). Although the Court eventually adopted the warrant preference, seeKatz v. United States, 389 U.S. 347, 357 (1967), and still pays lip service to it—see, e.g., Minn. v. Dickerson, 508 U.S. 366 (1993)—it has created so many exceptions to the warrant requirement that they overpower the rule. See Cal. v. Acevedo, 500 U.S. 565, 581...