45 Pages Posted: 14 Apr 2005
The relationship between the Fourth Amendment's prohibition of unreasonable searches and seizures and the Fifth Amendment's prohibition of compelled self-incrimination has engendered a history wrought with doctrinal confusion and theoretical disarray, which current doctrine has only exacerbated. The lack of a proper theoretical understanding of this relationship has allowed a particular type of "entanglement" to occur, whereby the concerns, concepts, or rationales from one amendment become transposed into the doctrine of the other, and, consequently, problems proper to one amendment are mistakenly analyzed under the other. In this Article I offer a general theory of the relationship between the amendments that attempts to disentangle the doctrine and straighten out the analytic disarray.
Part I discusses methodology. My approach is a middle way between the two dominant methods for constitutional theorizing in this area: top-down, normative and bottom-up, descriptive. Section II describes the core features of the doctrine for each amendment. Section III, after first discussing the shortcomings of alternative views, presents my view of the relationship between the two amendments. Incorporating the core features described in Section II, I argue for a view of the amendments as overlapping in the sense that potential Fifth Amendment events may arise within potential Fourth Amendment events. Accordingly, courts should subject government attempts at evidence gathering to a two-part inquiry: first, does the Fourth Amendment render the attempt unreasonable; second, if not unreasonable under the first inquiry, would the attempt compel incriminating propositional content from the mind of a suspect in order to use it against that suspect at a criminal trial? If the answer to the second inquiry is "yes," then the privilege applies. Part IV then employs this two-step inquiry to solve doctrinal problems regarding the government's subpoena power, stop-and-identify statutes, and the use of pre-arrest silence as evidence of guilt.
Suggested Citation: Suggested Citation
Pardo, Michael S., Disentangling the Fourth Amendment and the Self-Incrimination Clause. Iowa Law Review, Vol. 90, 2005. Available at SSRN: https://ssrn.com/abstract=691502