Double Reasonableness and the Fourth Amendment

45 Pages Posted: 14 Aug 2015

See all articles by Sam Kamin

Sam Kamin

University of Denver Sturm College of Law

Justin F. Marceau

University of Denver Sturm College of Law

Date Written: 2014

Abstract

Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework.

One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.

Suggested Citation

Kamin, Sam and Marceau, Justin F., Double Reasonableness and the Fourth Amendment (2014). University of Miami Law Review, Vol. 68, No. 3, 2014; U Denver Legal Studies Research Paper No. 15-37. Available at SSRN: https://ssrn.com/abstract=2643109

Sam Kamin (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6125 (Phone)
303-871-6711 (Fax)

HOME PAGE: http://law.du.edu/index.php/profile/sam-kamin

Justin F. Marceau

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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