What is an Unreasonable Search?

Abstract

What is an unreasonable search? This brief historical study examines the 18th century meaning of reasonableness for insight into this question. This history does not provide a single or complete answer, and offers instead multiple possible meanings based on both long-standing common law rules and principles as well as the immediate experiences of the framing generation. From these, we can glean what Chief Justice Roberts calls “some basic guideposts” that can inform Fourth Amendment analysis and bring much-needed discipline and legitimacy to the modern jurisprudence of reasonableness. Some of these guideposts are particularly relevant today as the Supreme Court continues to enlarge the powers of the police while the criminal justice system deepens racial inequality. This article highlights four such guideposts that focus on concerns about abuse of power, the public good, inequality/bias, and absurdity in the historic struggle to constrain government intrusion into the people’s lives.

Keywords: Fourth Amendment, Criminal Procedure, Originalism