The Local-Control Model of the Fourth Amendment

Abstract

Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated in the scholarly literature on the history surrounding the adoption of the Fourth Amendment. Some adhere to a reading of the historical record that roughly supports the Warrant Model while others have found that history more strongly supports the Reasonableness Model.This Article interprets the historical record differently than either of the two dominant schools, and introduces a third model of the Fourth Amendment: the Local-Control Model. It situates the Fourth Amendment as the culmination of a decades-long, continent-wide struggle by Americans for local control over search-and-seizure policy as against central authority. And it posits the Fourth Amendment as the result of an effort on the part of the Anti-Federalists, those who demanded a Bill of Rights, to maintain local control over search-and-seizure policy. On this view, the Fourth Amendment demands neither that federal officers generally use warrants for searching and seizing nor that federal officers act pursuant to a general reasonableness standard. Rather, the Local Control Model supports the view that federal officers must generally follow state law in conducting searches and seizures.