55 Pages Posted: 14 Mar 2005
This article was written as part of a Symposium on The Tools to Interpret the Fourth Amendment. The article proposes that the Court's decisions in City of Indianapolis v. Edmond and Ferguson v. City of Charleston can be understood as marking a new phase in the Court's Fourth Amendment decision making. Prior to these cases, the Court generally had adopted a deferential posture in assessing the government's justification for a suspicionless search or checkpoint. In both Edmond and Ferguson, on the other hand, the Court undertook a far more searching examination of the government's proffered justifications to determine whether the record supported the need to dispense with individualized suspicion. By engaging in this active scrutiny of the government's justifications for a suspicionless search, the article argues, the Court assumed a new role, that of a policy magistrate.
The article argues that the Court's assumption of the role as policy magistrate is justified under the Fourth Amendment and, in fact, is a reaction to the re-emergence of many of the concerns over general warrants that first led to the adoption of the Amendment. Although the contexts might be quite modern, such as drug testing, too much deference to the government's decision to undertake a search directly implicates the evils of general warrants: giving the government the ability to conduct searches without effective judicial oversight and without proven suspicion (or in James Otis's words, whilst [the citizen] is quiet).
The idea that the stage may be set for a renaissance of the general warrants doctrine may seem a bit odd given that the concern over general warrants largely had become a historical footnote during much of the twentieth century. This, however, was because the Court had read the Fourth Amendment as preferring warrants and thus ensured active judicial oversight of most searches. Once the rise of the reasonableness balancing test was coupled with the government's expanding capacity for suspicionless surveillance, however, many of the concerns surrounding general warrants again presented themselves. Indeed, Ferguson's facts highlight many of the points made by James Otis in his famous argument of 1761 against the writs of assistance and general warrants as a power [that] places the liberty of every man in the hands of every petty officer. The article concludes that the Court's willingness in Edmond and Ferguson to actively scrutinize the record as a policy magistrate is necessary to preserve judicial oversight and not cede the Fourth Amendment's meaning to the legislative and executive branches.
Suggested Citation: Suggested Citation
Sundby, Scott E., Protecting the Citizen 'Whilst He Is Quiet': Suspicionless Searches, 'Special Needs' and General Warrants. Mississippi Law Journal, 2005. Available at SSRN: https://ssrn.com/abstract=685641