Unreasonable Search

• Author: Jacob W. Landynski
• Pages: 2766-2768

Page 2766

"Unreasonable" is the controlling word in the FOURTH AMENDMENT. In its first clause the amendment guarantees the right of the people to be free from unreasonable SEARCHES AND SEIZURES; its second clause stipulates the terms for issuance of a judicial warrant: probable cause, oath or affirmation, particularity of description. What is an unreasonable and therefore forbidden search? Conversely, what is a reasonable and permitted one? The amendment does not say. The answer, in large measure, depends on one's understanding of the relationship of the two clauses.

Two polar positions have dominated debate in the Supreme Court on this matter. The view that was in the ascendancy before 1946 and that has generally prevailed again since CHIMEL V. CALIFORNIA (1969), treats the two clauses in conjunction so that the unreasonable searches forbidden by the first clause are defined by the warrant requirements in the second clause: a reasonable search is one conducted subject to a proper warrant, an unreasonable search is one that is not. A second view, generally dominant between HARRIS V. UNITED STATES (1946) and 1969, holds that reasonableness is an autonomous principle, to be measured by all the circumstances rather than by the securing of a warrant (although this is one factor to be considered).

The conflict between the two readings of "unreasonable" essentially has centered on SEARCH INCIDENT TO ARREST, a recognized "emergency" exception to the warrant requirement since WEEKS V. UNITED STATES (1914). According to the second interpretation, once the privacy of the dwelling has legitimately been invaded to make a lawful arrest, it is reasonable to allow the search (for the purpose of disarming the arrestee and seizing EVIDENCE which he may seek to destroy) to blanket the entire premises in which the arrest was made. This is a matter of the greatest consequence, for the vast majority of searches are carried out incident to arrest. If, however, the warrant requirement is considered to be the core of the amendment, the search must be circumscribed to the extent required by the emergency and therefore confined to the person arrested and the area within his immediate reach.

To treat reasonableness as an independent standard is contrary to both history and logic. On logical grounds there seems little value to stringent warrant requirements that can be readily negated by "reasonable" WARRANTLESS

Page 2767

SEARCHES. History, too, sets its face against the notion. The Fourth Amendment's proscription of unreasonable searches, alone among the provisions of the BILL OF RIGHTS to set fair standards for the apprehension and trial of accused persons, has a rich historical...