THE ORIGINS AND LEGACY OF THE FOURTH AMENDMENT REASONABLENESS-BALANCING MODEL.

• Author: Kinports, Kit

Abstract

The overwhelming majority of the Supreme Court's Fourth Amendment cases over the past fifty years have been resolved using a warrant-presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness-balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant's privacy interests. This balancing approach has justifiably been criticized as amorphous, subjective, and overly deferential to government.

No announcement or explanation accompanied the Justices' departure from the warrant-presumption model. In fact, the Court claimed that it was simply following its "general Fourth Amendment approach." (1) Some scholars likewise believe that the Court's Fourth Amendment jurisprudence has reflected this balancing approach for decades. And other academics fear that the Court has now completely abandoned the warrant-presumption model and replaced it with the reasonableness-balancing model.

This Article maintains that both of those claims are overstated. First, in exploring the origins of the reasonableness-balancing model, the Article concludes that, prior to 2001, balancing was largely limited to Fourth Amendment cases requiring the Court either to decide on the creation and scope of categorical exceptions to the warrant requirement or to rule on the constitutionality of administrative inspections. Although general language suggesting a wider role for the balancing test can be found in a few Supreme Court decisions, those opinions derived support for a balancing analysis exclusively from warrant-presumption model cases, did not stray far from that model, or have been undermined by later decisions. As a result, neither the Justices nor others have been able to find much in the way of precedent supporting an ad hoc balancing approach.

Turning second to the legacy of the reasonableness-balancing model, the Article analyzes both Supreme Court and lower court decisions postdating the trilogy of opinions. This review finds that the Supreme Court has continued to apply the warrant-presumption model in almost every Fourth Amendment case other than the three outlier opinions. The record in the lower federal and state courts is more mixed, and some courts have arguably attempted to extend the reasonableness-balancing model into a few limited contexts beyond those involved in the three Supreme Court decisions. In general, however, the lower courts have been reluctant to apply the reasonableness-balancing model aggressively and expand it into new arenas--with one exception, foreign intelligence and national security searches. Moreover, a number of lower court opinions have refused to engage in a balancing analysis or, though applying the balancing approach, have decided that the relevant law enforcement interests were outweighed by the defendant's privacy interests.

While the Article finds that the reasonableness-balancing model has not dramatically altered the Fourth Amendment landscape--at least not yet--that conclusion does not address the shortcomings of the balancing test. Most of the lower court opinions declining to use a balancing approach or balancing in favor of defendants have generated disagreement, either within the court itself or with other courts, and therefore could just as easily have been decided the other way. Moreover, all of the cases in which defendants prevailed under the balancing model were, or could have been, resolved under the warrant-presumption model as well. Given the vagueness and malleability of the reasonableness-balancing model, and the absence of any principled standard suggesting when it applies, the Article advocates that courts continue adhering to the warrant-presumption model and exclude evidence discovered during warrantless searches that do not fall within one of the categorical exceptions to the warrant requirement.

CONTENTS INTRODUCTION I. THE REASONABLENESS-BALANCING MODEL TRILOGY II. THE ORIGINS OF THE REASONABLENESS-BALANCING MODEL A. Balancing Before Knights B. The Precedent Cited by the Trilogy C. Other Possible Sources of Support D. Cases Going the Other Way III. The Legacy of the Reasonableness-balancing Model A. Subsequent Supreme Court Opinions B. Subsequent Lower Court Opinions 1. Refusing to Balance 2. Requiring Compliance with Both Models 3. Balancing in Favor of the Defendant a. Searches of Parolees and Probationers b. DNA Testing c. Electronic Monitoring d. New Contexts 4. Expanding the Reach of the Balancing Model a. Foreign Intelligence/National Security Searches b. Weapons Seizures c. Roadblocks and Group Seizures d. Testing DUI Arrestees C. The Future of the Reasonableness-balancing Model CONCLUSION INTRODUCTION

The Fourth Amendment consists of two clauses joined by the word "and": the Reasonableness Clause prohibits "unreasonable searches and seizures," (2) and the Warrant Clause prescribes the prerequisites for a warrant. (3) Given the "curious[]" way the Amendment is phrased, (4) the relationship between the two provisions is "almost entirely inscrutable," (5) a "syntactical mystery." (6) On its face, the Amendment does not specify when a warrant is required, and its constitutional history is "foggy." (7)

Some scholars take the position that the two clauses are "disjunctive" (8) and "independent" of each other, (9) that the Reasonableness Clause is the predominant clause and the Warrant Clause simply provides safeguards to protect against abusive warrants. (10) Under this view, the Fourth Amendment proscribes unreasonable searches and seizures but does not require, or presumptively require, probable cause and a warrant. (11) Under the contrary view, the two clauses are "conjunctive" (12) and "interdependent" (13): the Warrant Clause is predominant and constitutionally mandates a warrant, at least in certain cases. (14)

Although the Supreme Court has not directly engaged this academic debate, (15) most of its Fourth Amendment decisions over the past fifty years have followed a warrant-presumption model, which deems warrantless searches and seizures "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." (16) Starting in 2001, however, the Court has on three occasions deviated from that framework and applied an ad hoc reasonableness-balancing model, determining the constitutionality of a search by "examining the totality of the circumstances" and balancing "the degree to which [the search] intrudes upon an individual's privacy" against "the degree to which it is needed" to serve "legitimate governmental interests." (17) Two of those opinions, United States v. Knights and Samson v. California, permitted warrantless searches conducted pursuant to a search condition imposed as part of probation or parole, (18) and the third, Maryland v. King, allowed warrantless DNA testing following an arrest. (19)

The Supreme Court has never bothered to justify its decision to abandon the warrant-presumption model in those three (and only those three) cases. (20) In fact, the Court has denied that it deviated from precedent, referring to the balancing test as the "ordinary" approach to Fourth Amendment jurisprudence. (21) A cynic might say that the Justices resort to the reasonableness-balancing model when they want to uphold the constitutionality of a search that does not easily fall within one of the traditional exceptions to the warrant requirement. (22) Whatever the explanation, the Court has never defined, even roughly, which cases should be evaluated "by reference to the proposition that the 'touchstone of the Fourth Amendment is reasonableness.'" (23)

The reasonableness-balancing model has understandably engendered a good deal of academic criticism. It has been called "mushy," (24) "murky," and "almost entirely free of content." (25) Pointing out that the Supreme Court's weighing process tends to favor the prosecution, scholars have condemned the model as "rigged" (26) and have accused the Court of balancing with its "thumb pressing heavily on the government's side of the scale." (27) The scholarly community is not unanimous, however, (28) and some academics have proposed modifications to the reasonableness-balancing model. (29)

Although I am persuaded by the critiques of the reasonableness-balancing approach, this Article does not focus on those arguments. Instead, it explores the Court's uncertain and episodic embrace of the reasonableness-balancing model with two goals in mind: to analyze when the Court started balancing in earnest and to evaluate whether the conversion to the reasonableness model is complete. Some scholars trace the reasonableness-balancing model back to the late 1960s, arguing that the Court "ushered in the era [of] overall reasonableness" (30) in its first administrative inspection opinion, Camara v. Municipal Court, (31) and its stop-and-frisk decision the following year in Terry v. Ohio. (32) And some academics charge that the Court has departed almost entirely from the warrant-presumption model--that "totality of the circumstances balancing has become the new normal in Fourth Amendment adjudication." (33) This Article maintains that both of those claims are overblown.

In developing that argument, the Article proceeds in three parts. After briefly describing the Court's three reasonableness-balancing model opinions in Part I, Part II analyzes the Court's earlier case law and maintains that, prior to 2001, balancing was generally confined to cases in which the Justices were either ruling on the creation and scope of categorical exceptions to the warrant requirement or evaluating the constitutionality of administrative inspection...