Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World

Abstract:     
A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty, This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key facet of reasonableness, the crime under investigation. As a result, an invasive search of a suspected jaywalker is, legally speaking, no more or less reasonable than the same search of a suspected murderer.

Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.

Number of Pages in PDF File: 48

Keywords: Fourth Amendment, Search and Seizure, Crime Severity, Mincey, Atwater, Whren

Accepted Paper Series