Severing the Severability Doctrine: Why It’s Time the Supreme Court Finally Acknowledges, Clarifies, and Severs this Doctrine
10 Pages Posted: 14 Oct 2019
Date Written: January 2020
Since the beginning of our republic, our nation has scoffed at general search warrants. These warrants, whose history runs deep in colonial and pre-colonial times, allowed the Crown free reign into the private quarters and places of business of her subjects. However, after the Revolution of 1776, our nation, and eventually its new constitution, wrote away the use of these general warrants. The Fourth Amendment, and its prohibitions, however, does not always draw a clear and neat line. And in this grey area lies search warrants that are not perfect, and straddle the line of general and particular. States and lower federal courts have adopted to these imperfect warrants by creating the severability doctrine, which at times allows the cancerous portions of the warrant to be cut away. However, because the Supreme Court has not specifically addressed this doctrine, lower courts have created different standards for how to apply it.
It is time for the Supreme Court to finally acknowledge, clarify, and sever the doctrine of severability. Part I of this article describes the history of general warrants and how courts have applied the doctrine of severability. Part II addresses the standard for severability set out in U.S. v. Sells. This Tenth Circuit case has found some followers in its multi-step procedure for determining severability. The final part of this article explains how the Supreme Court should act. First, the Court needs to acknowledge this doctrine and give it its blessing. Second, the court needs to clarify how it should be used and not be used. And lastly, the Court should do away, or at least sever, the multi-step approach taken in Sells. By creating a general standard for the severability doctrine, defendants and law enforcement alike will have a fairer day in court.
Keywords: fourth amendment, search and seizure
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