Cops, Cars, and Citizens: Fixing the Broken Balance

43 Pages Posted: 29 Sep 2002

See all articles by Arnold H. Loewy

Arnold H. Loewy

Texas Tech University School of Law

Date Written: September 2002

Abstract

In this article, I contend that various lines of decisions have combined to create an unbalanced Fourth Amendment jurisprudence in regard to automobile searches. These decisions have resulted in a jurisprudence that overvalues police power to search and seize and undervalues citizens' rights to be free from such searches and seizures. Some of the offending decision are those that unjustifiably uphold warrantless searches, inventory searches, roadblocks, searches incident to arrest, consent searches, and subterfuge searches. But the most significant offending decision is Atwater v. City of Lago Vista, which upheld an arrest for a minor traffic offense with no aggravating circumstances.

After identifying the problem, I suggest what a reasonably balanced Fourth Amendment jurisprudence would look like in automobile search and seizure cases. I then explore the likelihood of achieving such a balance through Supreme Court decisions, state legislative action, and State Constitutional law. I conclude that the Court is unlikely to correct the problems on its own, but that it might be induced to act through state legislation and state constitutional decisions suggesting that the Court may be out of step with "evolving standards of decency".

Keywords: Criminal procedure, constitutional law, Fourth Amendment

Suggested Citation

Loewy, Arnold H., Cops, Cars, and Citizens: Fixing the Broken Balance (September 2002). Available at SSRN: https://ssrn.com/abstract=329182 or http://dx.doi.org/10.2139/ssrn.329182

Arnold H. Loewy (Contact Author)

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States

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