Comments on Three Recent Fourth Amendment Articles

Abstract

This document combines short comments about three recent articles discussing Fourth Amendment issues. An Original Take on Originalism, published in Harvard Law Review Forum, is a comment on Orin Kerr’s An Equilibrium-Adjustment Theory of the Fourth Amendment, recently published in Harvard Law Review. Professor Kerr argues that Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. Contrary to Professor Kerr’s assertion, however, his equilibrium-adjustment theory does not easily explain many of the Court’s cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences. At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology.The Implications of Disentanglement, published in Columbia Law Review Sidebar, is a response to Eve Brensike Primus’ recent article in Columbia Law Review, Disentangling Administrative Searches. Professor Brensike Primus argues that the Supreme Court’s so-called “administrative search cases” in fact comprise two separate strands, the first focused on “dragnets” that involve area or group searches and the second dealing with searches of people belonging to “special populations” that are associated with a lesser expectation of privacy. Thus, she argues, the Court’s recent tendency to lump these two types of searches together under its “special needs” rubric is misguided, and it should instead return to its traditional presumption against suspicionless dragnet searches and a multi-factor reasonableness analysis when dealing with special population searches. This response agrees with the entanglement thesis, but contends that it is overstated. More importantly, it disagrees with Professor Brensike Primus’ prescriptions for dealing with the two types of searches.Why Crime Severity Analysis Is Unreasonable, published in the Iowa Law Review Bulletin, is a critique of Jeffrey Bellin’s article, Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, which recently appeared in Iowa Law Review. Professor Bellin argues that the severity of the crime under investigation ought to be taken into account in assessing both the reasonableness of searches and whether a government action is a search in the first place, in the hope that courts will impose more restrictions on searches in cases involving minor crimes once they realize those rules will not handcuff investigations of serious crimes. A more likely result of taking crime severity into account, however, is that courts will apply the warrant baseline to minor crimes and ratchet protections downward when law enforcement goes after people suspected of being terrorists, murderers, rapists and robbers. Enforcing already-existing search incident and particularity doctrine, limiting consent as a basis for searches, and explicitly recognizing a narrowly-limited danger exception would be a safer way to accomplish the goals motivating Professor Bellin’s proposals.