The Fourth Amendment's Concept of Reasonableness

Abstract

This Article examines the Supreme Court's treatment of the Fourth Amendment's fundamental command - that a search or seizure be reasonable. It traces that treatment over time. Currently, there are at least five principal models that the Court currently chooses from to measure reasonableness: the warrant preference model; the individualized suspicion model; the totality of the circumstances test; the balancing test; and a hybrid model giving dispositive weight to the common law. Because the Court has done little to establish a meaningful hierarchy among the models, the Court in any situation may choose whichever model it sees fit to apply. Thus, cases decided within weeks of each other have had fundamentally different-and irreconcilable - approaches to measuring the permissibility of an intrusion. Looking forward, the article sets out a principled framework for measuring reasonableness, grounded in the Framer's values and characterized by a hierarchy of principles grounded in objective criteria outside the government's control.