Fourth Amendment First Principles

Abstract

The Fourth Amendment today is an embarrassment. Much of what the Supreme Court has said in the last half century - that the Amendment generally calls for warrants and probable cause for all searches and seizures, and exclusion of illegally obtained evidence - is initially plausible but ultimately misguided. As a matter of text, history, and plain old common sense, these three pillars of modern Fourth Amendment case law are hard to support; in fact, today's Supreme Court does not really support them. Except when it does. Warrants are not required - unless they are. All searches and seizures must be grounded in probable cause - but not on Tuesdays. And unlawfully seized evidence must be excluded whenever five votes say so. Meanwhile, sensible rules that the Amendment clearly does lay down or presuppose - that all searches and seizures must be reasonable, that warrants (and only warrants) always require probable cause, and that the officialdom should be held liable for unreasonable searches and seizures - are ignored by the Justices. Sometimes. The result is a vast jumble of judicial pronouncements that is not merely complex and contradictory, but often perverse. Criminals go free, while honest citizens are intruded upon in outrageous ways with little or no real remedy. If there are good reasons for these and countless other odd results, the Court has not provided them.