The Death of Suspicion

William & Mary Law Review, Vol. 51, No. 4, pp. 1275, 2010

68 Pages Posted: 28 Feb 2010

See all articles by Fabio Arcila, Jr.

Fabio Arcila, Jr.

UIC-John Marshall Law School; Touro University - Jacob D. Fuchsberg Law Center

Date Written: March 1, 2010


This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in which reasonableness serves as the constitutional touchstone for all governmental searches, and where neither warrants nor suspicion are primary mechanisms for protecting Fourth Amendment values. Therefore, new ways must be identified of assuring adequate Fourth Amendment protections. To that end some broad guidelines are offered.

Keywords: Fourth Amendment, 4th Amendment, search, seizure, warrant, warrants, suspicion, suspect, reasonableness, legal history, history, originalism

JEL Classification: K14

Suggested Citation

Arcila, Jr., Fabio, The Death of Suspicion (March 1, 2010). William & Mary Law Review, Vol. 51, No. 4, pp. 1275, 2010, Available at SSRN:

Fabio Arcila, Jr. (Contact Author)

UIC-John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

Touro University - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States
(631) 761-7111 (Phone)

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