The death of suspicion.

• Author: Arcila, Fabio, Jr.

ABSTRACT

At the nation's founding, search warrants and the concept of suspicion were well entrenched as a means of limiting governmental search power. This tradition largely explains why today's Fourth Amendment law includes two foundational black letter rules: the presumptive warrant requirement and the presumptive suspicion requirement.

Unfortunately, neither of these rules is correct. Certainly they have historical support, especially in the common law. But whether they reflect the totality of our historic experience is questionable, especially when civil search practices are considered. More importantly, modern developments--such as urban life and technological advancements, the rise of the regulatory state, and post-9/11 security concerns--have sufficiently changed circumstances so that these rules are now unworkable. Indeed, in today's world these rules are now demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence.

This Article is a call to arms. It challenges us to recognize that a new paradigm now confronts us, in which reasonableness serves as the constitutional touchstone for all governmental searches, and where neither warrants nor suspicion can be expected to serve as primary mechanisms for protecting Fourth Amendment values. Therefore, we must confront the need to identify new ways of assuring adequate Fourth Amendment protections. To that end, the Article concludes by offering some broad guidelines to start us on the way.

TABLE OF CONTENTS INTRODUCTION I. FALLACY OF THE PRESUMPTIVE WARRANT REQUIREMENT A. Criminal Context B. Civil Context II. FALLACY OF THE PRESUMPTIVE SUSPICION REQUIREMENT A. The Fourth Amendment's Text B. Originalism 1. Suspicionless Maritime Customs Searches 2. Suspicionless Building and Home Searches 3. Suspicion as an Illusory Protection a. Suspicion's Limited Protective Role b. Changes in Language c. Limits on Search Remedies d. Successful-Search Immunity Defense C. Suspicion as Proxy III. JUDGING REASONABLENESS WITHOUT SUSPICION: THE NEW PARADIGM A. Modern Urban Life and Technological Advancements B. The Rise of the Regulatory State C. The Post-9/11 World CONCLUSION INTRODUCTION

Suspicion is a siren. It has lured us into misguided Fourth Amendment waters, obscuring a more rational search jurisprudence, not only in the criminal context, but particularly in the civil context. (1) We cling to the rule that suspicion generally is required under the Reasonableness Clause, while ignoring that suspicion is a core requirement only under the Warrant Clause, through its reference to probable cause. (2) Yet the Supreme Court, which has correctly held that the Reasonableness Clause controls a civil search's constitutionality, continues to assure us that civil searches generally should be based on some level of individualized suspicion to be constitutional. Commentators, who commonly advocate for stricter enforcement of the rule, do not help matters. In perpetuating this rule, we remain trapped by our jurisprudence's inertia and fail to correct toward a sound course.

Simply put, suspicion is not the primary determinant of a governmental search's constitutionality, whether the search is criminal or civil in nature. Avoiding governmental overreaching is. Not all suspicion-based searches are reasonable. Reasonableness depends on many factors, such as the search's scope and intrusiveness, all of which help us determine whether the government exceeded its constitutional bounds. Conversely, the vast majority of today's suspicionless searches--be they criminal or civil in nature---are reasonable. These searches are perfectly constitutional so long as they do not involve governmental overreaching. Nonetheless, as if in a trance, we continue to assert loyalty to a suspicion-centered search regime that leaves us marooned on an unstable jurisprudential foundation. The rule has no grounding in the Fourth Amendment's text, a strong originalist case can be made against it, and though it once served us well it has now become unworkable due to modern developments.

Our myopic focus upon suspicion has had two important consequences--our adoption of a presumptive warrant requirement and a presumptive suspicion requirement---each of which has contributed to leading us astray. I will debunk the presumptive warrant requirement in Part I and explain why it is an inaccurate statement of black letter law in the criminal and civil contexts.

Part II is devoted to the presumptive suspicion requirement. It notes that suspicion is not a textual requirement under the Fourth Amendment, and further emphasizes that, during the Framers' time, suspicion was not a universal requirement for valid searches. The Framers, for example, statutorily authorized suspicionless searches in the maritime customs context, and even extended such search authority to homes and other buildings to enforce revenue laws. Further, to the extent that suspicion was required, numerous reasons exist for believing that it was often an illusory protection. Among those reasons are that, though an articulated concept, probable cause sentryship on the judiciary's part was almost certainly not fully developed at any point during the Framers' era; changes in language have likely resulted in probable cause having a more demanding definition now than at the nation's founding; during the Framers' era, numerous statutory obstacles existed to accessing a search remedy; and evidence indicates that suspicionless searches were allowed so long as they were successful. I close Part II by explaining that we would do better to conceive of suspicion as merely one proxy for protecting Fourth Amendment values, which can also be protected using other mechanisms, sometimes more effectively.

Finally, Part III argues that we are now confronted with a new paradigm of judging Fourth Amendment reasonableness in the absence of suspicion. This paradigm has been brought about by numerous developments, including the reality of modern urban life and technological advancements, the rise of the regulatory state, and security concerns in the post-9/11 world. All of these developments have resulted in an increased interest--and sometimes a need--to engage in preventative searches, such as for national security purposes.

I conclude by suggesting some broad Fourth Amendment guidelines that have distinct advantages over our current jurisprudence. These guidelines replace the presumptive warrant and suspicion requirements. They also go much further in fleshing out--more accurately than in the current jurisprudence--a few important Fourth Amendment principles. These guidelines have the key advantage of charting a middle course, which avoids one pervasive criticism of our present Fourth Amendment law, namely that it manically swings between a formalistic, strict application of the presumptive warrant and suspicion rules and an unbounded balancing approach. The guidelines enjoy this advantage because they provide explicit, discretion-limiting beacons that reflect core Fourth Amendment values. They thus provide a starting point for reformulating our Fourth Amendment jurisprudence so that it is more honest, coherent, and accurate.

1. FALLACY OF THE PRESUMPTIVE WARRANT REQUIREMENT

   The so-called black letter rule that the Constitution, through the Fourth Amendment, imposes a presumptive warrant requirement for governmental searches is commonly invoked by both courts (3) and commentators. (4) A common formulation of this rule is that, except for certain carefully limited exceptions, searches must be conducted under a valid warrant to be constitutional. (5) The problem with this rule is that it is untrue. In terms of the historical record, the Framers did not include the Warrant Clause in the Fourth Amendment to create a presumptive warrant requirement. Rather, they included it to strictly limit the grounds upon which warrants could issue. Further, this rule is a highly inaccurate description of modern Fourth Amendment jurisprudence. Thus, the Fourth Amendment does not impose a presumptive warrant requirement for either criminal or civil searches.

   1. Criminal Context

   The black letter presumptive warrant rule is not even true in the criminal context, where it purportedly applies the most stringently. (6) The reasons why this so-called rule is invalid in the criminal context, while multifaceted, can be boiled down to two straightforward arguments: history and coherence.

   Though still a prevailing view in current Supreme Court jurisprudence, (7) any assertion that the Warrant Clause somehow generally governs the constitutionality of criminal searches is contrary to a proper historical understanding of why the Framers included it in the Fourth Amendment. The Framers included the Warrant Clause only to specify the limited grounds--probable cause, particularity, and oath or affirmations upon which warrants can be granted, (9) allowing future generations to weaken these restrictions only through the difficult constitutional amendment process. The Framers had multiple objectives in doing so. First, they constitutionalized the common law ban on general warrants (10) to ensure that only specific warrants could issue, thereby ensuring that the general warrants that had been used to oppressive ends in Great Britain--most infamously in the Wilkes cases (11)--could not be used in the new nation. As Professor Taylor has explained, the Framers "did not prohibit as unreasonable all searches not covered by warrants issued in compliance with the second clause" because "their prime purpose was to prohibit the oppressive use of warrants." (12) Second, they sought to avoid any repeat of the colonial practice in which crown authorities had resorted to laxly issued writs of assistance to help justify their customs searches. (13) Being familiar with the abuses that accompanied writs of assistance, the Framers believed that both...